Liability of managing directors for social security contributions in spite of deferral

During the current corona crisis, the collection agencies for social security contributions (health insurance companies) have been granting a quick and unbureaucratic deferral of social security contributions in order to relieve employers financially. However, this may have consequences for the liability of the managing director.

• Basic requirements for a deferral

A health insurance company may only defer the claim for contribution if immediate collection would be associated with considerable hardship for the party liable to make the contribution and the claim is not jeopardised by the deferral.

• Current handling by the health insurance companies

At present, the legal requirements are hardly checked by the health insurance companies. Since the possibility of deferral is to be given lower priority than the aid packages from the Federal Government, such as applying for reduced working hours or taking advantage of subsidies and loans, the health insurance company only checks whether these measures have already been taken up by the employer.

The deferral should initially be possible for the months of March and April 2020. The period of deferral is therefore currently limited to the due date for the contributions for the month of May 2020. No deferral interest, default surcharges or reminder fees will be charged for the contributions owed. Thereafter a new decision is to be taken.

• Consequences for the liability of the managing director

According to this, the possibility of deferring social security contributions appears at first glance to constitute quick and unbureaucratic help for companies during the corona crisis. At second glance, however, the deferral merely postpones to a future point in time the date on which the claim becomes due for payment and does not mean that the payment obligation falls away. The claim of the health insurance company against the employer continues to exist. If the employer subsequently becomes insolvent as a result of the corona crisis, there is a risk that the unlimited personal liability of the managing director will remain and that the managing director will be personally liable if, when concluding the deferral agreement with the health insurance company, he could not safely assume that his company would be able to pay the social insurance contributions after the deferral expired.

We have compiled on our website comprehensive information and recommendations for action in response to the legal implications arising from the coronavirus pandemic: Coronavirus - legal issues