News on the social security obligation of shareholder-managing directors

The social security obligation of shareholder-managing directors is still a hot topic, although the BSG made its fundamental U-turn on the assessment of such situations several years ago. 
According to this, shareholder-managing directors are only not dependent employees if they either hold (at least) 50% of the shares in the company or have a comprehensive, qualified and statutory blocking minority. All other shareholder-managing directors are considered dependent employees under social security law - with the consequence that social security contributions must be paid on the remuneration.

In two recent decisions, the BSG has further clarified these principles. In the case underlying the decision of 1 February 2022 (B 12 KR 37/19), the shareholder-managing directors held 49% of the shares, but did not have a sufficient blocking minority. The articles of association only 
provided for a majority requirement of 75% for certain matters, such as the appointment of additional managing directors. In addition, the articles of association stipulated that the
shareholder-managing director was authorised to represent the company on his own for the durati-on of his employment and was exempt from the restrictions of section 181 of the 
German Civil Code (BGB). However, all this was not sufficient for the BSG. The individual special rights did not carry such weight that the employment relationship could not be 
classified as dependent employment.

Even professional regulations do not have a significant influence on the ruling practice of the BSG. For example, the BSG ruled (28.06.2022 - B 12 R 4/20 R) that shareholder-managing directors of a Rechtsanwalts-GmbH, i.e. lawyers who are subject to the professional regulations of the BRAO, are also considered dependent employees, unless they hold at least 50% of the shares in the company or have a blocking minority - and this despite the legal assessment that lawyers are independent bodies of the administration of justice.

All of this makes it clear that only two alternatives can be outlined when advising companies or their shareholders, respectively, if dependent employment of shareholder-managing directors is to be avoided. Practice shows that this is often neglected - especially when advising young com-panies. Time and again, especially in the start-up phase, these technical mistakes are made, which later prove to be costly.