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Liability of the purchaser of a business in insolvency

Federal Labour Court, Erfurt, Germany
Press Release No. 2/21

January 26, 2021

Pursuant to section 613a (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the acquirer of a business (part of a business) in insolvency is only liable for claims of the transferred employees to occupational pension benefits on a pro rata basis for the period of service completed after the opening of the insolvency proceedings. He is not liable for the benefits based on periods up to the opening of the insolvency proceedings even if the Pensions-Sicherungs-Verein (PSV) – the legally designated insolvency insurance provider – does not fully cover this part of the occupational pension under the Occupational Pensions Act.

The two plaintiffs had been promised benefits under the occupational pension scheme. According to the pension scheme, their company pension is calculated on the basis of the number of years of service and the salary earned on a certain date before they leave the company. Insolvency proceedings were opened against their employer’s assets on 1 March 2009. In April 2009, the operation was transferred to the defendant pursuant to section 613a (1) BGB.

Since August 2015, one of the plaintiffs has been receiving a company pension of approximately € 145.00 from the defendant and a retirement pension of approximately € 817.00 from the PSV. Although the defendant based its calculation on the pension scheme including the higher salary received on the relevant date before the insured event, it did not take into account the share of the occupational pension earned before the insolvency. The PSV, on the other hand, used the plaintiff’s lower salary at the time of the opening of the insolvency proceedings – as provided for in the Occupational Pensions Act. The plaintiff considers the defendant to be obliged to grant him a higher occupational pension. According to the provisions of the pension scheme, this had to be calculated on the basis of the higher salary, deducting only the amount he received from the PSV. The other plaintiff did not yet have a legally vested claim when the insolvency proceedings were opened. Therefore, he is not entitled to a claim against the PSV upon the occurrence of an insured event under the Occupational Pensions Act. He considers the defendant to be obliged to grant him an occupational pension in the full amount in the future. The lower courts dismissed the claims.

The plaintiffs‘ appeals were unsuccessful before the Third Senate of the Federal Labour Court. According to the German labour courts‘ interpretation of section 613a (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) – which is restrictive with regard to the special distribution principles of insolvency law – the plaintiffs cannot prevail with their claims. According to this interpretation, an acquirer of an undertaking in insolvency is not liable for occupational pension rights which accrued within the meaning of section 108(3) of the Insolvency Code for the period before the opening of insolvency proceedings. This case law is – as the Court of Justice of the European Union has ruled (ECJ 9 September 2020 – C-674/18 and C-675/18 – [TMD Friction])- compatible with Union law. It is justified under the general rule of Art. 3(4) Directive 2001/23/EC, which also remains applicable alongside the provisions in Art. 5 thereof, which apply only in insolvency. The prerequisite is that a minimum protection corresponding to Art. 8 Directive 2008/94/EC is granted. This minimum protection required under EU law is guaranteed in the Federal Republic of Germany by a claim against the PSV arising directly from EU law. Liability of the acquirer is therefore ruled out.

Federal Labour Court, Judgement of 26 January 2021 – 3 AZR 139/17 –
Previous instance: Düsseldorf Regional Labour Court, Judgment of 20 January 2017 – 6 Sa 582/16 –

Federal Labour Court, Judgment of 26 January 2021 – 3 AZR 878/16 –
Previous instance: Rhineland-Palatinate Regional Labour Court, Judgment of 4 November 2016 – 1 Sa 120/16 –