Pension Fund (Germany)

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A pension fund is in Germany an insurance-type , legally independent pension scheme which the employee is granted or his survivors a legal claim to their services ( § 1b para. 3 sentence 1 BetrAVG ). Pension funds can have the legal form of a stock corporation or a mutual pension fund association (a special form of a mutual insurance association (VVaG)) ( Section 237 (3) No. 1 VAG ). Pension funds were introduced in Germany on January 1, 2002 as the fifth way of implementing company pension schemes (in addition to direct commitments , relief funds , pension funds and direct insurance ). The BaFin called 33 pension funds with operations in Germany (July 2019).

Legal definition

According to § 236 VAG, the pension fund is a legal pension institution that

  • by way of funded system provides benefits for occupational retirement provision for one or more employers for workers
  • the amount of the benefits or the amount of the future contributions to be paid for these benefits may not guarantee for all benefit cases,
  • grants employees their own right to benefits from the pension fund and
  • is obliged to provide the retirement benefit as a lifelong payment or as a lump sum payment (the retirement pension can be combined with a partial capital option of a maximum of 30%).

Pension funds are financed by contributions from one or more sponsoring companies and the resulting income. The contributions can also be made by the employee by means of deferred compensation ( Section 1a (1) sentence 1 BetrAVG).

Legal relationships with a pension fund

The employee receives a pension promise from the employer for the company pension scheme through the pension fund. The employer and the pension fund agree on a pension fund contract with a pension plan, in which the contribution payments and the type of benefits are determined. In return, the pension fund grants the beneficiary employees a legal right to the pension benefits.

Services

A pension fund can offer insurance-like benefits, such as lifelong retirement benefits with a minimum guarantee in accordance with Section 1 Paragraph 1 Clause 1 No. 4 AltZertG. In this case, like life insurance, it is subject to investment regulations; above all, it must take into account a maximum actuarial interest rate of 0.9% and the capital investment regulations according to the Insurance Supervision Act ( Sections 124 and 125 VAG). The employer's liability is limited to the insolvency of the pension fund.

On the other hand, since the 2005 amendment to the VAG, a pension fund has been able to offer non-insurance-like benefits for which no minimum benefit is guaranteed, but rather the benefit is based on the contributions made and the income generated. In this case, there are no quantitative requirements for interest rates or investment ratios. However, the employer is then obliged to make (unlimited) contributions even during the pension period. If the fund's assets are not sufficient to meet the company’s promised benefits, the employer must make additional payments for ongoing benefits (not for entitlements) ( section 236 (2) VAG).

In principle, pension benefits in particular are provided for pension funds. However, it is harmless if, when the insured event occurs, a lump-sum payment of up to 100% of the saved capital is made as a one-off payment. According to the VAG, the benefits amount to at least the sum of the contributions made to the pension plan. The benefits from the pension fund are subject to full tax liability ( downstream taxation ).

The employee can take vested rights with him when changing employers. Conversions of remuneration lead to claims that are immediately vested; for employer-financed pensions, the statutory vesting normally applies .

Insofar as the employee is entitled to deferred remuneration for company pension schemes in accordance with Section 1a (1) BetrAVG, he can demand that the requirements for funding under Sections 10a, 82 (2) of the Income Tax Act are met ( Riester funding ).

Even if an employer retirement benefits granted by the way of effecting "Pension Fund", has to be covered by the pension security fund against insolvency done. This does not cover the risk of the pension fund's insolvency, but rather a possible loss of the employer for the obligation to make additional contributions. The employer must make contributions to the PSVaG accordingly. They amount to 20% of the contributions to be made in the case of a similar direct commitment or support fund.

financing

The fund benefits for occupational retirement provision must in funding principle take place. The pension fund invests its capital primarily in stocks and bonds . When it comes to investment policy, the pension fund is subject to fewer restrictions than pension funds or life insurance companies . This should enable a higher return to be achieved. On the other hand, there are also higher investment risks. The contribution to the pension fund can, depending on the pension fund, be partially financed and / or extended over several years. Despite complete outsourcing at the present time and the associated advantages from a tax and legal point of view, the company can relieve itself with regard to the available liquidity and continuously reduce existing gaps. The pension commitment disappears from the balance sheet.

Approval and monitoring

In Germany, a pension fund must be approved by the Federal Financial Supervisory Authority (BaFin) in accordance with Section 236 (4) VAG and - as a largely insurance-like concept - is subject to supervision even after approval. German pension funds differ significantly from pension funds abroad, which are mostly purely organizationally or legally separate funds from the employer, which do not guarantee employees any specific benefits, but only provide them according to the investment income achieved.

Pension funds approved in Germany can therefore only operate across borders with the prior special approval of the supervisory authority.

Although many pension fund contracts, all features of an insurance contract includes, it is assumed that the insurance contracts or insurance legislation only apply if they determine an explicit extension to pension funds. This is e.g. B. is the case with many provisions of the Insurance Supervision Act or the Commercial Code , but not with the Insurance Contract Act .

See also

Individual evidence

  1. ↑ BaFin company database. Retrieved July 10, 2019 .

literature

  • Michael Thaut: Direct commitment and pension fund: A comparison of advantages for performance-dependent and contribution-based systems and the conversion of direct commitment to pension funds , DUV, Wiesbaden 2007, ISBN 978-3-8350-0694-2
  • Hanns-Jürgen Weigel: Legal and economic aspects of the pension fund according to German law , Verlag Versicherungswirtschaft, Karlsruhe 2002, ISBN 978-3-88487-996-2

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