Social insurance: Changes in the obligation to pay contributions by employed GmbH shareholders

In practical terms, the circumstances under which a shareholder or/and managing director is (not) subject to social insurance contributions are of great importance. Accordingly, numerous questions arise with regard to their classification under social insurance law and also disputed points with regard to the social insurance agencies. With effect from April 1, 2022, the new Joint Circular of the German Central Associations of Social Insurance Institutions (“Spitzenverbände der Sozialversicherungsträger”) on status determination can be used in this respect. Concerning the differentiation of employment and self-employment following the implementation of case law, this circular also contains significant changes relevant under liability law for employed GmbH shareholders who are not appointed as managing directors. This shall be examined in more detail in the following, especially as it is likely to give rise to a need for action in some cases.

Until now, an employee who is not a managing director of a GmbH (limited liability company) was not considered a dependent employee if he or she held more than 50% of the voting shares. In the future, as well, “a dependent employment relationship may be excluded from the very outset in the case of shareholder-managing directors, cooperating sole shareholders and majority shareholders on the basis of their capital participation or special agreements in the articles of association. In the case of cooperating majority shareholders, however, an equity interest alone will not suffice for this purpose.” The current circular thus differentiates between employee sole shareholders and employee majority shareholders.

In the case of the sole shareholder, a dependent employment relationship cannot exist in principle even without a managing director function, because the sole shareholder also has the power of management towards the managing director on the basis of his position under company law and is therefore not subject to the managing director’s directive right.

In the case of employee majority shareholders who do not hold the position of managing director, the supervision of the GmbH’s employees provided for in the individual company agreement must be taken into account. If the managing director alone, but not the shareholders’ meeting, holds this position, the employee is bound by directives, which regularly leads to a corresponding employment relationship subject to social insurance contributions on the part of the cooperating majority shareholder. Only if the directive rights are transferred from the managing director to the shareholders’ meeting in accordance with the articles of association (in practice, however, this is rarely the case), is the directive obligation of the working majority shareholder as an employee of the company cancelled. The majority shareholder then also has management authority as against the managing director and can exert a decisive influence on the fate of the company, which regularly rules out dependent employment. However, in these cases, too, it must be examined on an individual basis according to the overall picture of the work performance whether a dependent employment relationship exists.

Accordingly, there is a need for action with regard to an exemption from contributions that will also exist in the future in all cases in which the supervision of the employees of the GmbH is not transferred from the managing director to the shareholders’ meeting in accordance with the articles of association in the case of a working majority shareholder. For in this respect - in accordance with previous declarations - as a rule no contributions are paid. This should be changed as soon as possible in order to avoid additional demands for contribution payments.

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