Harmonisation of insolvency laws within the EU
Ensuring the special protection of social security contributions in insolvency law.
RB – 02/2021
A focused minimum harmonisation for
selected areas was announced as part of the "Capital markets union" presentation on 24 September
2020. This was followed by the public consultation procedure on the approximation of national
insolvency laws on 18 December 2020. German Social Insurance continues to
advocate the need for the protection of social security contributions.
What does the EC want to achieve?
The EC has said that inefficient insolvency
procedures delay the recovery of business assets with a negative impact on
productivity, the labour market and economic development. In particular, nationally
varying insolvency laws are a major reason for reluctant cross-border
investment, as the satisfaction of claims in insolvency cases is difficult to
predict. Therefore, the EC intends to harmonise national differences in
insolvency laws. Specific sectors, such as banks, will be excluded from this
What are the implications of harmonising insolvency laws for the German Social Insurance system?
As insolvency creditors, health insurers
are on a par with other creditors. However, social insurance institutions are
among the so-called insolvency creditors who cannot detach themselves from the
insolvency debtor and they must finance benefits for their members despite
outstanding contributions. In a joint press release (2010), the National Association of
Statutory Health Insurance Funds (GKV-Sitzenverband), the German Federal
Pension Insurance Association and German Social Accident Insurance all
advocated a stronger position in insolvency law at national level.
In order to resolve the discrepancy between
the obligation to pay benefits and outstanding claims, the German Social
Insurance is of the opinion that social insurance institutions should be given
a stronger position in insolvency law on account of their special status and
In 2018, German Social Insurance commented on the EU
Commission's proposal for EU Directive 2019/1023 on preventive restructuring
procedures and increasing the efficiency of insolvency proceedings. The view of
the German Social Insurance is that contributions to national social security
schemes should be excluded from the suspension of enforcement measures and debt
relief. However, national legislators should be given, at the very least, the
opportunity to exempt these claims from the effects of restructuring and debt
relief measures in order to protect their social security systems.
common definition of insolvency, the conditions for opening insolvency
proceedings, the ranking of claims, avoidance actions, identifying and tracing
assets belonging to the insolvency estate were not regulated in the Directive.
The current initiative is intended to
complement EU Directive 2019/1023 with regard to restructuring and insolvency
and subsequently, it will also include aspects of insolvency law not covered by
that Directive. German Social Insurance will participate in the public
consultation and advocate the special need for the protection of social security