October 9, 2024 – The DRV Bayern Süd had considered insurance brokers who work without employees and predominantly with a pool of brokers to be subject to pension insurance. She has since corrected her assessment, reports lawyer Norman Wirth. The Lüneburg Social Court has also ruled against the compulsory insurance.
According to a ruling by the Bavarian State Social Court of June 3, 2016 (L 1 R 679/14), insurance brokers who conduct their business almost exclusively through a broker pool are subject to compulsory insurance in the statutory pension insurance. The entrepreneur generated more than five-sixths of his revenue through the pool and did not employ any employees.
The decision was justified by the fact that the agent essentially only works for one client and is economically dependent on this pool and is therefore in need of protection (VersicherungsJournal June 30, 2016).
AfW: Concerns about the content and craftsmanship of the court ruling
Norman Wirth (Image: Andreas Klingberg)
According to the AfW – Federal Association of Financial Services eV The judgment is subject to “significant concerns in terms of content and craftsmanship.”
In making its decision, the court did not take into account the special contractual provisions underlying the contractual relationship between the broker pool and the broker, said the managing AfW board Attorney Norman Wirth in a press release.
“We view the judgment as an isolated case that should not be reflected in further case law on this topic.
It is essential that all legal options be exhausted against decisions that refer to this judgment in the future or adopt its content,” Wirth continued (June 30, 2016).
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Lawyer Wirth against the pension insurance obligation of brokers
The lawyer makes full use of the legal options available through his Wirth – Attorneys at Lawyers in Partnership mbB. On Monday he reported that two insurance brokers working with the Fund Financial Broker Service GmbH work together, from the German pension insurance (DRV) Bayern Süd were classified as “not subject to pension insurance”.
“These decisions represent a significant turning point, especially given the fact that exactly this DRV Bayern Süd and the responsible Bavarian State Social Court took the opposite position in 2016,” comments the specialist lawyer for insurance law.
What is particularly noteworthy is that these decisions were issued without the need for an objection procedure. This shows that the DRV now recognizes and evaluates the special structures of broker-pool relationships more clearly.
It is made clear that it is not the respective broker pool that is the client, but the […] Customers.
Attorney Norman Wirth
DRV recognizes the entrepreneurial freedom of pool brokers
In a decision dated August 28, 2024, the pension insurer stated: “You are permanently and essentially not only working for one client.” For Wirth this means: “This makes it clear that it is not the respective broker pool that is the client, but those through one Brokerage agreement with customers connected to the broker.
With the current decisions, the DRV recognized that the affected brokers maintain their entrepreneurial freedom and independence despite working with the broker pool. Important factors such as the right to control one’s own customer relationships and to be able to transfer inventory at any time played a crucial role.”
The Lüneburg Social Court had previously denied an insurance requirement for a broker who works with Fonds Finanz in its ruling of November 2, 2022 (S 4 BA 32/19). The court declared that there was no economic dependence on the pool. There is therefore no insurance requirement § 2 Sentence 1 No. 9 SGB VI (6.3.2023).
