Facts of the case

In the ruling of the Federal Social Court dated 29 March 2022 (case reference: B 12 KR 1/20 R), a decision was made on the legal nature and the retroactive possibility of amending/reversing a so-called status determination notice (Statusfeststellungsentscheidung) pursuant to § 7a German Social Code IV (SGB IV). The claimant was a GmbH whose managing director was also a shareholder. The defendant was the German Federal Pension Insurance (DRV Bund). The managing director was summoned.
The claimant was founded in 2007 with a share capital of EUR 25,000. The co-invitee acquired a share of EUR 10,000 (40%) by notarized agreement dated 18 February 2010 and was also managing director of the company from 1 April 2010. Resolutions of the shareholders’ meeting of the claimant GmbH are passed with a qualified majority of 70%. The defendant therefore had a blocking minority (Sperrminorität).
The claimant filed an application for status determination pursuant to § 7a SGB IV for the activities of the defendant as managing director since 1 April 2010. The defendant, DRV Bund, issued a decision in 2010 stating that the defendant was self-employed and therefore not subject to the statutory pension insurance obligation. The decision contained the note that it could be amended if there was a significant change in the factual or legal circumstances that existed when it was issued (reference to § 48 SGB X). The claimant was asked to notify the DRV Bund in writing of any changes that occurred.
On 8 December 2012, the claimant’s shareholders resolved to increase the share capital to EUR 49,000. The capital increase was entered in the commercial register on 4 January 2013. As a result of the capital increase, the defendant only held a 20.41% share in the claimant.
The defendant became aware of the capital increase as a result of a tax audit and revoked the status determination notice with retroactive effect from 8 December 2012. The defendant argued that the defendant was employed as a dependent managing director, as he had lost his blocking minority as a result of the capital increase.
The claimant explained that the defendant was exempt from the prohibition on self-contracting (Selbstkontrahierungsverbot) pursuant to § 181 (Bürgerliches Gesetzbuch – BGB), that as the sole managing director he represented the GmbH both in and out of court and was not subject to the employer’s right to issue instructions and directives.

Legal framework

Upon request, the German Federal Pension Insurance (Deutsche Rentenversicherung Bund) can determine in accordance with § 7a SGB IV whether a contract is employment or self-employment. With this binding decision, the parties involved can, among other things, obtain clarity as to whether the contractor is employed and therefore subject to pension insurance (§ 1 sentence 1 no. 1 SGB VI).
Such a status determination procedure is advisable if it cannot be determined with certainty whether someone is employed or self-employed. The decision of the DRV Bund is issued as a status determination notice and is an administrative act (§ 31 SGB X).
Essentially, the Federal Social Court (Bundessozialgericht – BSG) ruled:

• The status determination notice is an administrative act with permanent effect, which can generally be revoked with effect for the future if a significant change occurs after the administrative act has been issued (§ 48 para. 1 sentence 1 SGB X). A retroactive revocation at the time of the change in circumstances is possible in particular if the person concerned has intentionally or grossly negligently failed to comply with a notification obligation (§ 48 para. 1 sentence 2 no. 2 SGB X).
• The limited liability company (GmbH) has a duty to report any subsequent changes in material circumstances if a status decision has been issued in accordance with § 7a SGB IV. A subsequent change in the material factual and legal circumstances was that the shareholder-managing director had lost his legal power in the shareholders’ meeting as a result of the capital increase and no longer had a blocking minority.
• If there is a significant change in the factual or legal circumstances, the German Federal Pension Insurance (Deutsche Rentenversicherung Bund) is entitled to revoke a status determination with effect for the future. In the case decided, the body authorized to represent the claimant did not comply with its duty to notify of the material change, in any case due to gross negligence, so that the status determination decision had to be revoked with effect for the past.

Further information on the social security obligation of a managing partner who does not have a majority in the shareholders’ meeting:
Although the BSG ruled, without this ultimately being relevant to the decision, that the defendant “no longer had a comprehensive (“genuine or qualified“) blocking minority covering all of the company’s activities after the capital increase, as a qualified majority of 70% of the votes is required for the shareholders’ meeting to pass a resolution, and he therefore no longer had the legal power to determine the fate of the company by influencing the shareholders’ meeting. One might think that the BSG assumed that sufficient legal power for exemption from the pension insurance obligation could also lie in a blocking minority, which the shareholder-managing director initially had with 40% and only lost as a result of the capital increase.
Overall, however, it is doubtful that the decision from 2010 would still be valid at all according to the current case law of the BSG. Whereas in the past, the BSG focused on whether the managing director had the power under the articles of association to prevent instructions he did not like or to influence resolutions affecting his employment relationship, according to more recent BSG case law, a mere blocking minority to prevent such measures is no longer sufficient to reject dependent employment. Instead, what is required is a “comprehensive power of influence” conferred by the articles of association, which entitles him to “co-determination of the entire company policy“. This means that even holding 50 % of the shares and a blocking minority would no longer be sufficient for the affirmation of self-employment.
With regard to the authority to make changes, it should be noted that if a status determination notice has been issued, only changes to the actual circumstances must be reported, while a change in case law must be taken up by the authorities and can then only lead to a change for the future. As a general rule, in unresolved cases, companies should eliminate uncertainties through a status determination procedure in accordance with § 7a SGB IV.