Pension Scheme Funding in Germany. Private Investment Funds Practice Discussion Papers

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1 Pension Scheme Funding has become a must for corporates in the German marketplace. The need to optimize investment of pension assets means there are far-reaching opportunities for financial institutions. Pension Scheme Funding in Germany Private Investment Funds Practice Discussion Papers In Germany, an economy with 82 million people, funded occupational pension schemes are a comparatively rare phenomenon. Since the foundation of the Federal Republic of Germany, state pension provision has been very strong and occupational pensions have merely served as a supplement to state provision. Recent and upcoming changes in legislation as well as business needs and demographic pressure have triggered a trend towards occupational pension provision and the funding of the liabilities under the traditionally unfunded occupational pension schemes in Germany.

2 Unfunded Pension Schemes Dominating in Germany German occupational pension schemes have historically been designed as defined benefit (DB) schemes, although the worldwide trend towards defined contribution (DC) can also be noticed in Germany. Dr. Nicolas Rößler, LL.M.** Partner, Frankfurt T: Most German pension schemes have traditionally been set up as so-called direct commitment schemes (Direktzusagen), under which the employer pays the pensions directly from its cash flow when they fall due. This scheme design is the key difference between Germany s pension finance/ funding environment in comparison to other major countries. Under such direct commitment schemes there is no obligation or even an encouragement in terms of German labour or tax law to fund the respective liabilities. Although the law allows for a range of funded approaches, recent statistics published by the German professional association for occupational pensions (aba) show that still 56 percent of all liabilities under German pension schemes (representing EUR 234 billion of EUR 426 billion) are the result of direct commitment schemes. Dr. Guido Zeppenfeld, LL.M.* Partner, Frankfurt T: gzeppenfeld@mayerbrown.com Employers who operate direct commitment schemes accrue book reserves for their pension liabilities on their German and international balance sheets. Under German tax law, the employer can deduct its liabilities under the scheme from its taxable income. The tax deductable present value of the pension liabilities must, however, be calculated by applying an unrealistically high discount rate as well as within other tax law restrictions. For this reason, the accrued book reserves on the tax balance sheet for DB schemes do not reflect the actual value of the employer s pension liabilities that is different to the IAS 19 or SFAS 87 accounting methodology. Internationalization Necessitates Funding of German Pension Schemes In an international context the traditional German direct commitment schemes are not only highly unusual, but also perceived as unfunded or unsecured pension schemes that are considered negative by analysts. Anglo-Saxon dominated rating agencies in particular are extremely critical about pension reserves and treat them as real debt capital. This, of course, has massive detrimental effect on the debt to equity ratio and therefore triggers disadvantageous rating results. Furthermore, under EU Regulation 1606/2002 which came into force on 14 September 2002 all listed corporations with registered offices in EU Member States have to draw up their group accounts in accordance with IFRS. Hence, the negative effects of unfunded pension liabilities under IFRS have become even more present for these German corporations. An upcoming change of German GAAP will align German accounting rules with IFRS and will therefore also enhance this effect for all other companies in Germany. * auch Fachanwalt für Arbeitsrecht * also certified Employment Law Expert ** University of Notre Dame 2 Pension Scheme Funding in Germany

3 Rating aspects, the increased need to improve the debt to equity ratio under Basel II and the general internationalization of the capital markets are therefore causing more and more companies in Germany to reduce their balance sheet by funding pension liabilities. The Practical Solution: Contractual Trust Arrangements (CTAs) As a consequence of these requirements of internalization, German companies, particularly German subsidiaries of German corporates, reporting under GAAP and IFRS accounting rules have been looking for ways to fund their pension liabilities. Besides other funding methods (transfer of liabilities to a pension fund or installation of a re-insured support fund), one answer is to set up a vehicle that secures the tax advantages of the direct commitment system and also meets the challenges of international accounting the so called Contractual Trust Arrangement (CTA). This is becoming an increasingly popular solution for pension finance. The CTA is a simple contractual framework between the sponsoring employer and a special purpose vehicle, acting as Trustee. Under the CTA, the sponsoring employer assigns certain assets as being held exclusively for the purpose of securing and funding the pension liabilities under the employer s direct commitment scheme. The sponsoring employer will then irrevocably transfer these assets to the Trustee who will hold the assets in trust for the sponsoring employer and the beneficiaries at the same time. There are no minimum funding levels or ongoing funding requirements. It is left entirely to the sponsoring employer what assets it wants to assign and transfer to the Trustee. The assets may include shares of the sponsoring employer s parent company, bonds, cash, real estate and even cattle or warehouse inventory basically everything that has a fair market value. mayer brown 3

4 A properly constructed CTA will have the following features: German tax law still recognizes the CTA assets as company assets. The book reserves on the German tax balance sheets will still be tax deductable. International accounting standards (US-GAAP or IFRS) recognize the CTA assets as plan assets. The debt to equity ratio is improved, which triggers better rating results. The beneficiaries receive additional insolvency protection. The upcoming change of German GAAP will also allow the netting-off of assets held by the Trustee under a CTA against the corresponding pension liabilities. Setting up a CTA does not require the consent of the employees or the employee representatives. The contractual relationship between the employees and the employer remains untouched and the employees keep their rights to claim pension benefits from the employer. The employer will, however, be reimbursed by the Trustee for any pension payments it makes. In summary, a CTA provides practical means for legal entities in Germany to overcome the disadvantageous effects of unfunded and unsecured pension liabilities in the international financial community while at the same time it secures the tax beneficial elements of a direct commitment scheme. 4 Pension Scheme Funding in Germany

5 Investing Plan Assets under a CTA A single employer sponsored CTA is completely unregulated (some regulatory elements apply to market CTAs, which offer participation to different employers within the marketplace). Therefore, the sponsoring employer is free to develop a tailor-made funding and investment policy that best meets its individual business objectives and economic situation. As mentioned above, no restrictions, such as minimum or maximum funding requirements or regulatory rules on investment or funding apply. A CTA that exclusively holds assets of one sponsoring employer (including its sister or subsidiary companies) does not require permission from the German supervisory authority BaFin. The Trustee under a CTA is within the sponsoring employer s investment guidelines that are usually set out in the agreement between the sponsoring employer and the Trustee free to enter into investment agreements with financial institutions and assign the task of investing the plan assets to third parties. Hence, along with the trend towards funding of pension liabilities, Germany sees an increasingly developing market for pension asset management. Assets transferred to CTAs as well as assets transferred to other financing vehicles have to be invested in the marketplace. Financial institutions, especially investment banks, have realized the enormous market potential and have started to create specific pension asset management groups in Germany to manage the challenges under the described developments. Germany sees investment tools, such as funds, being specifically created for the purpose of investing plan assets under CTAs. Given the immaturity of this market and the flexibility of the CTA structure, Germany can be considered the Wild West of pension asset management in these days a wide and open market that with few restrictions that is currently being discovered and populated. mayer brown 5

6 Mayer Brown s Pension Asset Management Group Mayer Brown has a renowned German and international pensions group with extensive experience in the design of CTAs. Mayer Brown also has the highly integrated international asset management group necessary to provide advice on the structuring and ongoing management of CTAs and has recognized the demand for integrated pension and asset management legal services by establishing a dedicated Pension Asset Management Group. This group is uniquely positioned to provide one-stop state of the art legal advice to corporates looking for funding solutions for their direct commitment pension schemes in Germany as well as advice to asset managers looking to provide investment solutions for pension assets. 6 Pension Scheme Funding in Germany

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