The European Commission published a proposal for a directive
on harmonising certain aspects of insolvency law at the end of last year. Its
objective is to pursue harmonising the existing national insolvency
regulations. This should result in a better capital markets union, increased
security for investors, reduced costs and promoting cross-border investments.
Prefer social security funds
The European Commission's proposals also focus on
standardising the conditions for annulment actions. They are also aimed at
being able to declare legal acts null and void if they favour a creditor. But
there are exceptions to this principle.
German Social Insurance (DSV) also claims such
an exception for its sponsoring organisations for statutory health, pension and
accident insurance in Germany: Their legal acts to satisfy or secure social
security contributions should be exempt from being contested and should not be
possible to declare them null and void. This is why DSV has submitted a
Social security funds are forced creditors
The arguments for this are obvious. The
claims from the social security institutions should not be equated with claims
under private law during insolvency proceedings. Social insurance agencies
cannot choose their contractual partners because of their statutory insurance
and contractual obligations. They are forced creditors. Social security
contributions are also part of wage and salary payments. It is contradictory
that they are not to be given preferential treatment – unlike wage and salary claims.
Company restructuring from contribution funds
The current legal practice in Germany
results in the social security system being deprived of funds through a bad
debt in the event of insolvency or a claim against contributions that have
already been paid. Funds whose use is stipulated by law to protect the insured
and stabilise the systems. Money that is now deemed to be part of the
insolvency estate will flow into the settlement fund for creditors under
private law or into the restructuring of the insolvency debtor. This is handled
differently in other member states, e.g. France.
Court of Justice of the EU
The European Court of Justice has its own
view of things. It considers partial exemption from social charges to be an
unlawful aid, depending on the effect of the measure (judgement of 17 September
number C-212/19). The view of the German social security authorities and
the view of the argumentation of the Luxembourg court is that the presumption
of unlawful aiding and abetting would be close at hand if the contestability of
social security contributions already paid were allowed.