28. September 2020

Assumption of debt

In the event of a validly agreed assumption of debt pursuant to §§ 414 et seq. of the German Commercial Code (HGB), the pension obligation is transferred to any third party. The originally obligated employer is released from his obligation to pay benefits; any obligation to perform is definitely excluded. The new debtor of the pension commitment is only the third party.

The assumption of debt is usually based on an agreement between the employer (previous pension debtor) and a third party, according to which the latter undertakes to assume the pension obligation in return for a corresponding remuneration. The agreement is only effective if the employee entitled to pension agrees (§ 415 I BGB). Such consent may be given by prior consent or by subsequent approval. In the latter case, the agreement shall be suspended and ineffective until approval has been granted.

If the pension beneficiary refuses his consent, the assumption of the debt is invalid. The existence of a performance assumption (in the internal relationship) is then presumed, i.e. that in case of doubt the new debtor is to fulfil the pension obligation. The pension beneficiary then has no claim against the new debtor. The latter is only obliged vis-à-vis the previously sole pension debtor (employer) to pay the benefit to the pension beneficiary.

In the event of a third party assuming the pension obligations in an exempting manner, the original employer must release the accrued pension provision in full with an effect on net income in the year of the outsourcing. The profit from the reversal of the provision is offset as an operating expense by the remuneration for the assumption of the pension obligation to the third party.

However, § 4 BetrAVG imposes strict limits on the aforementioned possibility of assuming the debt by transferring pension obligations to third parties. The provision of § 4 BetrAVG is therefore lex specialis on debt assumption within the meaning of §§ 414 et seq. of the German Occupational Retirement, Survivors’ and Disability Pension Act (BetrAVG). Accordingly, pension benefits resulting from direct commitments and vested entitlements may only be transferred or outsourced to a third party in the following cases:

In the event of a change of employer: In this case, the transfer of the identical commitment (§ 4 II No. 1 BetrAVG) as well as the transfer of a commitment of the same value (§ 4 II No. 2 and III BetrAVG) to the new employer is permissible.

Transfer to a liquidation insurance within the meaning of § 4 IV BetrAVG.

Transfer within the framework of the change of the implementation route without change of employer.

Thus only 2 groups of persons remain for the exonerating assumption of pension obligations in accordance with the provisions of the German Civil Code (BGB):

On the one hand, persons with forfeitable pension entitlements are excluded from the restrictions regulated in § 4 BetrAVG with regard to a debt assumption that discharges the debt. This is because forfeitable entitlements are generally not protected by the provisions of the BetrAVG. If the employment relationship is terminated, these claims regularly lapse. If the employment relationship is continued, an outsourcing of the pension obligations is possible in principle, but in practice it is an unsuitable instrument, since to secure the tax-privileged treatment of expenses in the expectancy phase, the pension obligation must be settled via one of the five implementation channels of the BetrAVG. Therefore, outsourcing to any third party does not help.

On the other hand, these are persons who are not subject to the provisions of the BetrAVG (§ 17 BetrAVG). This group includes controlling shareholder-managing directors who are to be assessed as entrepreneurs in their own company and are therefore not subject to the restrictions of § 4 BetrAVG. It does not matter whether they are forfeitable or non-forfeitable entitlements or current pension benefits. However, the mandatory prerequisite for the effectiveness of the debt-discharging transfer is the consent of the managing director as creditor (§ 415 I BGB).