Template employer loan
Submission of master agreements concluded with landlords. Employer loans for employee participation purposes; Interpretation of contractual clauses; Employees horizon; Compensation clause in the settlement contract; Termination of silent participation after bankruptcy
The contractual clauses in employment contracts, which refer to collective agreement clauses or are congruent with them, are based on the same standards as those unilaterally pre-formulated by the client. The interpretation of such provisions therefore does not depend on the agreement of the parties interested in collective bargaining, but on the possibilities of mutual understanding of the employees, with which the related employment contract arrangement is later voted on.
Whether an employer loan to promote employee participation falls under a settlement clause contained in a settlement agreement designed to settle all “employment” claims is governed by the specific terms of the loan agreement. The bankruptcy of the company assets of a company that has established a two-stage, dormant partnership with a civil partnership for employee participation purposes, in which the participating employees have participated, causes the dormant partnership to end.
Issue: The applicant is the bankruptcy administrator for the fixed assets of the defendant is a former employee of the debtor.
The parties to the dispute are about the repayment of a debtor for the granting of an employer loan to promote an employee stock ownership plan. 1997/1998 was the debtor in an economically strained time. Against this background, the company G. wanted to participate as a shareholder in the debtor, but this made it dependent on a wage waiver of workers of 10 percent. In this case, the debtor was taken as a shareholder in the obligation.
In a subsequent collective bargaining agreement concluded in June 1998 between the debtor and DAG, a corresponding wage waiver and a general dismissal waiver for operational reasons were agreed by the reference date 2004; At the request of DAG, an employee participation scheme was set up to offset the salary reduction. Employees should be given the opportunity to become shareholders of a holding company which should be the silent partner of the debtor.
Employees who did not have the equity capital could use a loan granted by the borrower, which in turn was financed by B, for refinancing purposes. In three interlocking agreements, the Articles of Association of 16 May 1999 and the Company’s Articles of Association of 15 December 1999, the conditions for granting and repaying such a loan are laid down.
The agreement also includes the “Agreement on the formation of a typically tacit company” with effect from 31 March 1999 (participation agreement) and the loan agreements concluded with the employees. This agreement is contained in a 14-page information booklet dated 11 October 1998, the receipt of which was confirmed in writing by the employees upon signing the participation agreement.
As regards the risk of insolvency, paragraph 3.1 states that in the event of the insolvency of the debtor, the employee’s assets would be largely lost, but the administrator would nevertheless require the repayment of a loan taken out to refinance the participation in full. The contractual relationship between the shareholders of “AMB” (AMB) was regulated by the Articles of Association.
The object of the company was participation as a typical silent partner in the debtor, which is referred to in the agreement as “AEF KG”. Only the employees of the debtor could be shareholders. The company was due on the cut-off date of the deadline. In the event of an employee leaving the employment relationship with the debtor, the following provisions have been established: …..
If a shareholder leaves the AEF limited partnership as an employee, the employee must leave the company automatically at the end of the current financial year. The participation of the retired shareholder reduces the tacit participation of the company in the AEF limited partnership. “If the employee had made his contribution through loan financing, his contribution was credited to the loan on his departure from the company (section 11 (1a) of the Articles of Association).
On the basis of the participation agreements concluded between AMB and the debtor, AMB took an economic interest in the debtor as of December 31, 1999, as a typical silent partner. The AMB was paid a minimum interest rate of 8.5 per cent per annum from the provisional net result of the debtor at the time of the transfer at the time of the acquisition of the shares in the calendar year concerned, regardless of the result.
In the case of a good annual financial statement of the debtor, under certain conditions he received a preferential interest rate of a maximum of 10 per cent. H. pa on the deposit paid yesterday as additional profit participation. From the remaining provisional annual surplus of the debtor, he was entitled to a profit participation in the amount of his contribution to the fixed capital accounts of the limited partners of the debtor (§ 7 Nos. 2 to 4 participation agreement).
The minimum interest rate pursuant to 7 no. 2, the remaining profit participation pursuant to 7 no. 3 and the remaining surplus participation pursuant to 7 no. 4 of the participation agreement were to be distributed through an asset manager to its shareholders, ie the debtor’s employees, as part of their capital contributions (§ 8 No. 2 of the statute).
If the contribution was covered by a loan from the debtor, § 8 (2) and (3) of the Articles of Association regulate: ….. If a shareholder has concluded a refinancing loan with AEF Kommanditgesellschaft on shares, the amount distributed to him will be the amount the interest due on this loan has been reduced and thus
“The AMB was not to be involved in the damages of the debtor (” Article 7 (6) Participation Agreement).) After termination of the tacit participation AMB should have the offending loans of its shareholders, ie the debtor’s employee they are distributed (Article 12 (1) of the Participation Agreement).
If an employee has left the employment relationship with the debtor and therefore the AMB (9 no. 4 of the Articles of Association), his pro rata contribution was reimbursed to AMB. It was offset against the outstanding loan amount of this employee (§ 12 no. 3 of the participation agreement). In the case of the insolvency proceedings of one of the shareholders, each shareholder was granted an ordinary termination right from the beginning of the third month after initiating insolvency proceedings (§ 10 no. 3a of the participation agreement).
The debtor’s 127 employees, who financed their contribution to the AMB through a debtor’s loan, have entered into one with the debtor. The debtor is also referred to in this document as “AEF KG”. his. Thus, the loan is only used to refinance the participation of these employees as shareholders of AMB.
The loan should be limited until the end of 2008 and could not expire from the debtor.
The interest was not payable directly to the debtor as lender. Instead, they were set off against the minimum interest rate of 8.5 percent, to which the employee is entitled as a shareholder of AMB pursuant to section 7 (2) of the participation agreement from the silent participation (section 4 (2) of the loan agreement).
If the borrower leaves the employment relationship of the debtor as an employee before the balance sheet date of the financial statements 2008: I. Subject to an earlier repayment pursuant to 5 paragraph 3 and paragraph 3, the loan has a term until the balance sheet date. If the borrower leaves the AEF limited partnership before this appointment as an employee, the loan is due to leave the AMB for repayment.
The loan is due for repayment at the latest with the termination of the tacit participation between the AEF limited partnership and the AMB.The loan is non-repayable, whereby the loan volume is settled by offsetting the borrower’s capital contribution to the AMB The borrower may also repay the loan in whole or in part on 31.12 of each year.
The loan agreement can be terminated by both parties for good cause at any time without notice. “The Bankruptcy Procedure on the Debtor’s Debt Assets was initiated and the Applicant was designated as the Bankruptcy Trustee by resolution of 18 May 2003. The Claimant registered with the Employee Representatives Plugin and Registry on the same day and with the General Works Council below, which includes, inter alia, the Model Settlement Agreement Balance of interests and social concept concluded: the following settlement agreement is concluded to avoid a labor dispute over the termination of the employee employment relationship:
It is agreed that the employment relationship existing between them was terminated properly, promptly and operationally by decision of the insolvency administrator dated 25 December 2003 and that the employee leaves employment with the debtor by the end of 16 December 2003. The contract is fulfilled if all reciprocal claims of the contracting parties from the employment relationship and its dissolution, regardless of the legal grounds, whether known or not, are settled and compensated.
The employee’s claims arising from the employment relationship that result from the employment relationship until the bankruptcy of insolvency is not affected. Any compensation claims of the employee under collective agreements due to early termination of the employment relationship are not affected. The employee has no objection to the dismissal due to operational reasons of 17 December 2003. The right to enforce the employment relationship in court will be revoked.
The employee will withdraw all dismissal claims filed immediately after the signing of the contract.
Employees who co-financed employee participation through loans turned to the committees to ask when repayment of outstanding loans could be expected and whether a settlement agreement could be possible. A settlement agreement was concluded according to the model shown in Annex 3 to the interest / social plan.
According to the findings of the labor court, which were not challenged by the appeal, the defendant left the employment relationship with the debtor on the deadline 31 December 2004. The plaintiff has terminated the loan relationship in February 2005. In his complaint filed with the labor judge on 31 December 2005, he requested the repayment of the loan at the time the insolvency proceedings were still open.
The plaintiff claimed that with the opening of the bankruptcy the tacit participation according to 230 HGB in conjunction with 728 para 2 BGB was liquidated and thus repealed. Pursuant to Section 5 (1) of the Loan Agreement, the loan relationship was due to be repaid. The compensation clause in Section 7 of the Settlement Agreement does not preclude the repayment claim of the loan.
It is neither a claim for employment nor a claim for revocation. The employee representatives did not understand the severance payment clause as a remission of the loan repayment claims by the plaintiff. The defendant based his claim on termination by claiming that the loan repayment claim had lapsed in accordance with paragraph 7 of the Settlement Agreement.
The plaintiff’s claim to loan repayment (488 (1) sentence 2 BGB) has become statute-barred on the basis of the indemnity clause set out in clause 7 of the settlement agreement between the contracting parties. The settlement agreement between the contracting parties includes the general business batches of Sv. and Sv. The contractual clauses in employment contracts, which refer to collective agreement clauses or are congruent with them, are based on the same standards as those unilaterally pre-formulated by the client.
In addition, the employees who signed such agreements did not participate in the collective bargaining of the collective agreement and could not take part in it. The interpretation of such provisions therefore does not depend on the agreement of the parties interested in collective bargaining, but on the possibilities of communication of the employees with whom the related employment contract regulation is made later (see linker in WOLF / Lindacher / Pfeiffer ALB-Recht 3) on page 34, note 305 c, marginal 115).
The Civil Code does not apply to collective agreements, company agreements and employment contracts, is in many cases subject to the form clauses used in employment contracts, which refer to or comply with such a collective agreement and reflect only their total content, but not the substantive content Are subject to review (“Senate of 25 April 2007 – 6 AZR 622/06 – Restructuring 35, BAGE 122, 197).
The repayment claim for the loan granted by the debtor to promote employee participation is a requirement under the employment relationship under this interpretation standard and therefore falls under the compensation clause in § 7 of the settlement agreement. For examining whether the loan entitlement, in the image of a moderately-informed employee who has used a loan granted by the debtor to promote employee participation and has left the employment relationship on the basis of a settlement agreement in accordance with the collective agreement model text, is entitled to the employment relationship iSv was.
7 of the settlement agreement, the contractual network for the employee stock ownership plan and the granting of credit for its financing, as well as the purpose of the employee stock ownership plan must also be taken into account in addition to the text of the settlement agreement. a) According to its wording, the compensation clause covers all claims arising out of the employment relationship. This includes all claims that the parties to the employment contract have in relation to each other on the basis of their legal relationship arising from the employment contract.
The decisive factor for determining whether a claim falls within the scope of such a compensation clause is the direct link between a life-course process and the employment relationship (see BAG 27. 2. 1992 – 7 AZR 201/91 – on II 1 b of the justifications, AP BPersVG 46 No. 18 = EzA TVG 4 Exclusion periods No. 99 for the exclusion period according to § 70 BAT).
If a claim is based on the employment relationship between the parties involved, this is a “damage arising out of the employment relationship” (see BAG on 31st October 2008 – 8 AZR 886/07 – note 21 for a collective exclusion period, see also TZR 383) / 82 – AP TVG 4 Exclusion Prs No. 4.
In the case of an employer loan, the principal provides a member of staff with a temporary employment contract. The extent to which such a loan is linked to the employment relationship, and therefore whether it expires on the basis of a compensation clause, which does not cover claims related only to the employment relationship, but only all employment claims, depends on the concretisation of the credit agreement (see BAG 2001/01 – 9 AZR 11/00 – BAGE 97, BAGE 97, BAGE 97, 65, in the version from 1 to 2 October 2001/02 – 9 AZR 598/04 – BAGE 116, 104).
In the current case, the debtor has granted his employees an employer loan in an economically strained situation in order to promote employee participation. This is related to the existence of the employment relationship. Under the underlying contracts, not only was the loan itself co-financed by the borrower. In addition, the interest on the loan and the repayment of the loan should also be borne by the debtor in a closed procedure. bb) The employer loan was earmarked and was paid by the debtor via a trustee not directly to the employee, but to AMB (§ 2 no. 2 of the loan agreement).