6. April 2020

Transformation right: Spin-Off

Company pension obligations to pensioners and former employees who have left the company with a vested entitlement cannot generally be outsourced as part of debt assumption. In this respect, it will also be out of the question to assume debts. In these cases, therefore, pension obligations can only be outsourced in accordance with the provisions of the Transformation Act in the form of demerger or spin-off requirements.

In contrast to the so-called merger, not all assets and liabilities must be transferred to another legal entity in the case of a demerger. Rather, only the assets and liabilities expressly designated in the spin-off agreement or plan are transferred. In contrast to the classic asset deal, however, the transfer does not take place by way of individual succession but as (partial) universal succession. The universal succession becomes effective upon entry of the demerger in the commercial register (§ 131 UmwG).

In the split-up, a distinction is made between split-up, spin-off and outsourcing. In a split-up, the splitting legal entity transfers its entire assets pro rata to several other legal entities in exchange for shares in these companies to its shareholders. The splitting company is dissolved and ceases to exist upon entry of the splitting in the Commercial Register (§ 131 UmwG). The assets and liabilities of the split legal entity may be transferred either to one or more existing legal entities (demerger for absorption) or by transfer to newly formed legal entities (demerger for new formation).

In a spin-off, the transferring legal entity does not transfer its entire assets, but only part of the assets and liabilities, while retaining the remainder. The difference to the splitting is that it is not necessary to dissolve the splitting entity.

In an outsource – unlike in a split-up or spin-off – the shares in the receiving legal entity or the newly established legal entity are not held by the shareholders of the transferred legal entity, but by the transferring legal entity itself. This creates a parent-subsidiary structure between the transferring entity and the receiving entity.

Restrictions on freedom of assignment under demerger law only apply to employees who are in a current employment relationship with the transferring legal entity and either remain with the transferring legal entity or are transferred to the receiving legal entity in accordance with § 613a BGB.

In contrast, former employees of the transferring legal entity are not covered by § 613a BGB. The reference in § 324 UmwG to § 613a BGB thus does not stand in the way of a classification of the legal relationships of former employees. Also the unwritten principle of the inseparability of active employment relationship and supply relationship no longer applies, since the active employment relationship is terminated. Pension obligations to pensioners and former employees who have left the company with a vested entitlement are therefore subject to the principle of freedom of assignment under split-up law pursuant to § 126 (1) UmwG. They can therefore be allocated to the legal entities involved in the demerger within the framework of a privately autonomous regulation. In the case of a business split into a holding company and an operating company, it is thus possible to make the uniform allocation of all pension liabilities to the operating company legally effective via a split in accordance with the Transformation Act. However, it is also possible to transfer the rights to another legal entity involved in the demerger. An economic concentration of the obligations via an exemption agreement – as is necessary in the case of a split-up of an undertaking within the scope of § 613a BGB – is therefore not required.

Pension obligations arising from terminated employment relationships can thus in principle be more independent – and also the only – subject of an outsource agreement.

In this context, Kenston Pension Ltd is your partner and service provider for all questions concerning the outsourcing of company pension obligations. In addition to the corresponding consulting support, we also administer and manage specially established pension companies for the direct assumption of pension obligations. Talk to us!