Transformation Law – Implementation

Company pension obligations to retirees and former employees who have left the company with a vested pension entitlement can generally only take place in accordance with the provisions of reorganization law in the form of demerger or spin-off requirements.

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

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

In the case of a demerger, the transferring entity does not transfer all of its assets, but only a portion of the assets and liabilities, while retaining the remainder. The difference to the split-up is that a dissolution of the splitting legal entity is not required.

In the case of a spin-off – unlike in the case of a split-up and spin-off – the shares in the acquiring legal entity or the newly formed legal entity are not held by the shareholders of the transferred legal entity, but by the transferring legal entity itself. Thus, a parent-subsidiary structure is created between the transferring and the receiving legal 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 who either remain with the transferring legal entity or are transferred to the receiving legal entity in accordance with Section 613a BGB. In contrast, former employees of the transferring legal entity are not covered by Section 613a BGB.

Pension obligations to pensioners and former employees who have left with a vested pension entitlement are therefore subject to the principle of freedom of allocation under demerger law in accordance with section 126 (1) UmwG. They can therefore be allocated to the legal entities involved in the demerger within the framework of a private autonomous arrangement. In the case of a division of an operating company into a holding company and an operating company, it is therefore possible to make a legally effective uniform allocation of all pension liabilities to the operating company by way of a division in accordance with the UmwG. However, the transfer to another legal entity participating in the demerger is also possible.

Pension obligations arising from terminated employment relationships can therefore in principle be an independent – and also the only – subject matter of a spin-off agreement.

In this context, Kenston Pension GmbH is your partner and service provider for all issues relating to the outsourcing of direct company pension obligations. In addition to the corresponding consulting support, we also administer and manage, together with our partner companies within the KENSTON GROUP®, specially established pension companies (“pensioner companies”) for the direct assumption of pension obligations. Contact us!