If, while maintaining the implementation route, another company is to (co-)take over the direct commitment economically and legally, in practice the “Schuldbeitritt” of the other company to the employer’s pension obligation is solution of choice. There are no legal provisions governing the assumption of the debt itself. Thus it can be arranged according to § 311 BGB by agreement according to the individual needs and requirements (Erman/Rthel, BGB, preliminary remarks to § 414 Rn. 12 ff.). The following 3 contract types of debt accession have developed over time.
- Simple transfer of contractural obligation to perform of another;
- Classical debt assumption or debt co-assumption (cumulative debt assumption);
- Releasing debt accession (debt accession with assumption of contractural obligation to perform of another).
In the simple assumption of the contractural obligation, the third party only undertakes to partially or completely discharge the pension debt in the internal relationship with the main debtor (pension obligor). However, the pension beneficiary himself does not receive a right to claim; the assumption of performance does not even have to be brought to his attention. In the case of a simple assumption of performance, debt relief is not based on succession, but on the redemption of another’s debt. In case of doubt, it is to be assumed when interpreting the agreement that only a simple assumption of performance exists (§ 329 BGB), which has no influence on the external relationship.
With the classic assumption of debt, a third party also joins the employer as the previous (sole) debtor of the pension obligation (cumulative assumption of debt). There is no change in the employee’s legal position as creditor of the employer (Kolvenbach/Sartoris/ Schmitz/Wilhelm, 180). A joint liability arises between the employer and the third party (§§ 421 et seq. BGB). Joining the debt does not fall within the scope of § 4 BetrAVG, since the additional debtor is not the employer of the pension beneficiary. Thus the general civil law provisions of §§ 414 et seq. apply exclusively. BGB (Langohr-Plato, para. 614).
The contractual agreement of the classic accession to debt takes place between the employer and the acceding third party. The consent of the creditor of the pension benefits (employee) is not required. This is because the employee receives a further debtor upon assumption of the debt and the employer has to pay the employee – in contrast to the assumption of the debt according to §§ 414 et seq. of the German Civil Code (BGB) – a further debtor. BGB and/or 4 exp. 2 BetrAVG – remains obligated. Because of the improvement of the creditor position, one also speaks of a debt assumption or cumulative debt assumption. The employee is entitled to demand the payment owed at his discretion from either of the two debtors. The debt assumption thus has an external effect.
In addition to the assumption of co-debt, in the internal relationship between the acceding third party and the originally solely obligated employer, an assumption of performance according to § 329 BGB (German Civil Code) is usually agreed, according to which the third party undertakes to release the employer from all pension obligations. This ensures that, despite the joint liability, the employer with the original obligation is largely relieved legally and economically (Debt Release, Wellisch/Bleckmann, DB 06, 120).
In the case of debt accession with assumption of performance (discharging debt accession), the debt acceding party assumes liability for pension obligations with biometric risks.
The employer remains obliged to pay the insolvency contributions to the PSVaG (§ 11 BetrAVG) even after a third party has joined the debt. However, the debtor is not legally protected against insolvency by the PSVaG, as he is not the employer of the pension beneficiary.