Sections Overview
(1) Those assets which the company requires to maintain its share capital may not be paid out to the shareholders. Sentence 1 does not apply to payments made upon the existence of a control or profit transfer agreement (section 291 of the Stock Corporation Act) or to payments which are covered by a full claim to counterperformance or restitution against a shareholder. Sentence 1 also does not apply to the repayment of a shareholder loan and payments against claims arising from legal acts which correspond economically to a shareholder loan.
(2) If they are not needed to cover a loss in share capital, any paid in additional contributions may be repaid to the shareholders. The repayment may not be made before three months have elapsed since the decision to make the repayment was made known in accordance with section 12. In the case referred to in section 28 (2), repayment of additional contributions is inadmissible before the share capital has been deposited in full. Repaid additional contributions are deemed not to have been collected.
Author & Law firm
Julian Opp has been a lawyer since 2009 and a partner at Achsnick Pape Opp Rechtsanwaltsgesellschaft mbH since 2013. A key focus of his work is advising on crises, restructurings, and insolvencies of medium-sized enterprises. In this context, he advises companies, shareholders, corporate bodies, as well as creditors, financiers, and investors on all insolvency, corporate, and financing law issues related to financing, corporate restructuring, or insolvency.
Additional focus areas of Julian Opp's work include out-of-court and court representation of insolvency administrators, corporate bodies, or creditors, particularly in connection with claims of corporate liability and insolvency challenges, as well as negotiating, drafting, and managing dual-purpose trust relationships and financing and security documentation.
Areas of Expertise
- Restructuring and Reorganization
- Credit and Security Law
- Dual-purpose Trusts
- Corporate Liability and Insolvency Challenges
Career
- Studied law at the University of Mannheim
- Legal clerkship in the district of the Pfälzisches Oberlandesgericht Zweibrücken, Second State Examination
- Since 2009 at Achsnick Pape Opp
Publications
Books / Monographs
- Achsnick/Opp: Die doppelnützige Treuhand in der Sanierung (Dual-purpose Trusts in Restructuring), RWS-Verlag, 3rd ed. 2021
- Achsnick/Opp: Die doppelnützige Treuhand in der Sanierung, RWS-Verlag, 2nd ed. 2013
- Pape/Opp: Sanierungsgutachten (Restructuring Reports), RWS-Verlag, 1st ed. 2017
Handbooks / Commentaries
- Opp/Fouladfar: "Die doppelnützige Treuhand als Sanierungsinstrument zur Insolvenzvermeidung" (The Dual-purpose Trust as a Restructuring Instrument to Prevent Insolvency) in: Hohberger/Damlachi, Praxishandbuch Sanierung im Mittelstand, Springer Gabler Verlag, 4th ed. 2019, Chapter 7.4 (pp. 717 ff.)
- Pape/Opp: "Rechtlicher Rahmen für die Erstellung von Sanierungsgutachten" (Legal Framework for the Preparation of Restructuring Reports) in: Hohberger/Damlachi, Praxishandbuch Sanierung im Mittelstand, Springer Gabler Verlag, 4th ed. 2019, Chapter 6.4 (pp. 558 ff.)
- Achsnick/Opp: "Einstweiliger Rechtsschutz im Insolvenzverfahren" (Interim Legal Protection in Insolvency Proceedings) in: Enders/Börstinghaus, Einstweiliger Rechtsschutz, ZAP-Verlag, 3rd ed. 2016, pp. 738 ff.
Articles / Case Comments
- Opp: "Zur Vorsatzanfechtung gegenüber einem Zahlungsmittler" (On Intentional Contestation against a Payment Mediator), EWiR 2018, 147
- Opp: "Zur Darlegungs- und Beweislast des Gläubigers für die Wiederaufnahme der Zahlungen nach Kenntnis der Zahlungsunfähigkeit des Schuldners" (On the Burden of Proof of the Creditor for the Resumption of Payments After Knowledge of the Debtor's Insolvency), EWiR 2017, 115
- Achsnick/Opp: "Finanzierer als Anfechtungsgegner – präzisierte Anforderungen an die Darlegung subjektiver Tatbestandsmerkmale durch Insolvenzverwalter" (Financiers as Contestation Opponents – Refined Requirements for the Presentation of Subjective Facts by Insolvency Administrators), InsVZ 2010, 369
- Krüger/Opp: "Wirksamkeit des Forderungserwerbs durch einen Factor im Insolvenzeröffnungsverfahren und individuelle Konzernverrechnungsvereinbarungen – Anmerkung zum Urt. des BGH v. 10.12.2009" (Validity of Debt Acquisition by a Factor in Insolvency Proceedings and Individual Group Netting Agreements – Comment on the Judgment of the German Federal Court of 10.12.2009), NZI 2010, 672
- Achsnick/Opp: "Insolvenzanfechtung von Zahlungen aus geduldeter Kontoüberziehung – Anmerkung zum Urt. des BGH v. 6.10.2009" (Insolvency Challenge of Payments from Tolerated Overdraft – Comment on the Judgment of the German Federal Court of 6.10.2009), NZI 2010, 633
Articles / Journal Contributions
- Opp/Pape: "Haftungsrisiken bei Transaktionen mit Gesellschaftern" (Liability Risks in Transactions with Shareholders), E-Book "GmbH-Geschäftsführer 2020," pp. 95 ff.
- Opp/Pape: "Wann braucht die Bank ein Sanierungskonzept?" (When Does the Bank Need a Restructuring Concept?), Handelsblatt Journal – Special Publication: Restructuring & Transformation, September 2019, p. 5
- Opp/Pape: "Sanierungskonzepte im Wandel der Zeit" (Restructuring Concepts Through the Ages), Guest Article in: Existenz, Magazine for Finance, Restructuring, Corporate Recovery, and Economy, Issue No. 9 (February 2018), pp. 39 ff.
- Opp/Pape: "Anfechtung im Kontext von Sanierungen – es muss nicht IDW sein, aber ..." (Contestation in the Context of Restructuring – It Doesn't Have to Be IDW, but...), Handelsblatt Journal – Special Publication: Restructuring – Corporate Recovery – Insolvency, October 2016, p. 9
- Opp/Pape: "Gut-achten, statt haften!" (Reports, Not Liability!), return - Magazine for Corporate Governance and Restructuring, online publication, August 31, 2016
Florett & Falke Rechtsanwaltsgesellschaft mbH
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Unsere Mandanten sind Gesellschafter und Geschäftsführer von Unternehmen des gehobenen Mittelstandes, aber auch Finanzgläubiger wie Banken und Kreditversicherer, Insolvenzverwalter oder Investoren, die wir im Rahmen außergerichtlicher und gerichtlicher Sanierungen, bei Unternehmenskäufen und gesellschaftsrechtlichen Umstrukturierungen sowie im Insolvenzverfahren beraten, führen und vertreten.
To Commentary for lawyers
on Section § 30 Kapitalerhaltung
Relevance for legal relations
a) Legal Relations
Section 30 German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG) is one of the central provisions in the regulatory structure for raising and maintaining capital in a Limited Liability Company (GmbH). The Federal Court of Justice (BGH) describes Sections 30 GmbHG and Section 19 GmbHG as the “core of the law on limited liability companies”. Federal Court of Justice, Judgement of 30.06.1958 – II ZR 213/56, BGHZ 28, 77
Section 30 I GmbHG contains - in short - a prohibition on payments by the GmbH to its shareholders if the payment would be at the expense of the GmbH's share capital (subscribed capital). Section 30 II GmbHG supplements the protection of the (equity) capital of the GmbH by restricting the free repayment of additional contributions (besides the contribution of the share capital) within the meaning of Sections 26 et seq. GmbHG, which are, however, not very common in practice.
Section 30 GmbHG primarily serves to protect the creditors of the company. As the shareholders of a Limited Liability Company such as a GmbH are generally only obliged to make a payment on the shares they have subscribed to, but are not personally liable for the liabilities of the GmbH, the regulations on raising capital (in particular Sections 14, 19 GmbHG) and capital maintenance (Sections 30, 31 GmbHG) are intended to ensure that, at minimum, the share capital of the GmbH is maintained and is available for the settlement of claims of the company's creditors. Section 30 I sentence 1 GmbHG therefore stipulates a payment prohibition that prohibits payments by the GmbH to its shareholders if this payment would affect the share capital (subscribed capital).
The protected share capital, which is referred to as “subscribed capital” in the balance sheet, corresponds to the amount of share capital stated in the articles of association and registered in the commercial register, irrespective of whether the contributions on the subscribed shares have already been paid in full.
Whether the share capital is affected by the payment to the shareholder must be examined on the basis of an interim balance sheet as at the time of the payment, which must be prepared in accordance with the principles of commercial law. This interim balance sheet is used to determine the so-called “Net Assets” (Reinvermögen) of the GmbH, which is the difference between the assets and the “real” liabilities, i.e. provisions and liabilities:
If the Net Assets determined as described before are lower than the share capital (subscribed capital) this is referred to as an short balance (Unterbilanz). If a short balance is already apparent at the time of the intended payment to the shareholder or if the Net Assets would fall below the share capital as a result of such payment, payment is prohibited in accordance with Section 30 GmbHG.
It is important to note that the term “payment” does not only include direct cash payments by the GmbH to its shareholder, but is defined extensively for the protection of creditors. A prohibited payment within the meaning of Section 30 I sentence 1 GmbHG can therefore be benefits of any kind for the favor of a shareholder that lead to a reduction in the company's assets, such as the transfer of property or rights or the waiver of claims. The assumption of liabilities or the creation of new liabilities to third parties can also be a “prohibited payment” within the meaning of Section 30 GmbHG, provided that this is done at the request or in the interest of the shareholder (e.g. assumption of liabilities of the shareholder without compensation or creation of obligations towards third parties who provide their services to the shareholder for private use).
On the other hand, the shareholder is of course not prohibited from having business relationships with “his” GmbH, for example if the shareholder of the GmbH leases business property, sells goods to or simply provides services for the GmbH, e.g. as managing director or consultant.
The question of whether a benefit provided by the GmbH to its shareholder results in a reduction in assets at the expense of the share capital must always be considered from a balancing perspective. If the payment made by the GmbH to its shareholder is offset by an equivalent consideration, there is no reduction in assets from a balancing perspective that could affect the share capital. For example, if the GmbH acquires goods at market value from its shareholder, the (purchase price) payment to the shareholder is offset by the acquired asset, which compensates for the cash outflow in the balance sheet.
In order to determine whether a permissible transaction or a prohibited payment was made in an individual case, it is determined whether a prudent managing director acting in accordance with commercial principles would also have concluded the transaction with a non-shareholder under the same circumstances and on the same conditions, i.e. whether the payment was justified by business reasons Federal Court of Justice, Judgement of 13.11.1995 – II ZR 113/94, ZIP 1996, 68(so-called “arm's length principle”). If the transaction between the shareholder and the GmbH does not comply with the arm's length principle, for example because the shareholder sells goods to the GmbH at inflated prices or, conversely, purchases goods from the GmbH below market value, there is a hidden distribution to the shareholder in the amount of the difference, which leads to a breach of the payment prohibition of Section 30 I sentence 1 GmbHG if a short balance has already applied (see above). A “classic” in this context is excessive management remuneration for the shareholder-managing director or excessive fees as part of a consultancy agreement between the shareholder and the GmbH.
If the GmbH makes payments to its shareholder in breach of the payment prohibition in Section 30 I sentence 1 GmbHG, the shareholder concerned is obliged to reimburse the payment received in breach of the prohibition in accordance with Section 31 I GmbHG. If the shareholder concerned is unable to make the reimbursement, the other shareholders are liable for the reimbursement on a pro rata basis in accordance with Section 31 III GmbHG. Although the subsidiary liability of co-shareholders pursuant to Section 31 III GmbHG only applies if the amount to be reimbursed is “necessary to satisfy the company's creditors”, this requirement is generally met, as claims for reimbursement pursuant to Sections 30, 31 GmbHG are usually asserted by the insolvency administrator in the GmbH's insolvency proceedings.
For reasons of creditor protection and to prevent attempts of circumvention, the capital maintenance regulations also apply to third parties in various constellations defined by case law, i.e. the payment prohibition of Section 30 I sentence 1 GmbHG can also apply if the GmbH does not make a payment directly to the shareholder, but to a third party, if this third party is legally or familiarly related to the shareholder or the payment was initiated by the shareholder. Please refer to the expert section below for explanations of the individual cases.
Conversely, Section 30 I sentences 2 and 3 GmbHG also provide for exceptions to the prohibition of payment:
For further explanations on the exceptions described above, please refer to the expert section below.
b) Impact for Shareholders
For the shareholder as the recipient of the payment, the prohibition of payment in Section 30 I sentence 1 GmbHG primarily implies that he must reimburse payments that he has received from the company in breach of Section 30 I sentence 1 GmbHG in accordance with Section 31 I GmbHG, irrespective of whether the share capital has been refilled in the meantime in another way, for example through profits that have accrued again. The claim for reimbursement is also only time-barred after 10 years (Section 31 V sentence 1 GmbHG) and can be asserted by the insolvency administrator in insolvency proceedings.
However, breaches of Section 30 I sentence 1 GmbHG also entail liability risks for the co-shareholders of the recipient of the payment. This is because if the prohibited payment cannot be obtained from the recipient of the payment, the other shareholders are liable on a pro rata basis in proportion to their shares (Section 31 III sentence 1 GmbHG). Although the subsidiary liability of co-shareholders pursuant to Section 31 III GmbHG only applies if the amount to be reimbursed is “necessary to satisfy the company's creditors”, this requirement is generally met, as claims for reimbursement pursuant to Sections 30, 31 GmbHG are usually asserted by the insolvency administrator in the GmbH's insolvency proceedings.
c) Impact for Managing Directors
In addition to the co-shareholders of the recipient of the payment, it is primarily the managing director who bears the liability risks in the event of breaches of Section 30 I sentence 1 GmbHG.
If the co-shareholders of the recipient are required to reimburse the prohibited payment due to the default of the actual recipient of the payment in accordance with Section 31 III GmbHG, they can take recourse against the managing director in accordance with Section 31 VI GmbHG if the managing director intentionally or negligently violated the payment prohibition when effecting the payment.
Furthermore, in the event of prohibited payments, the company itself is also entitled to a claim for damages against the managing director in accordance with Section 43 III sentence 1 GmbHG, which is typically asserted by the insolvency administrator in insolvency proceedings. Unlike claims for damages under Section 43 II GmbHG, claims for damages under Section 43 III sentence 1 GmbHG cannot be extinguished in advance by discharge, settlement or waiver and the managing director is also not exculpated by the fact that he has complied with a resolution of the shareholders if the amount of damages is “necessary to satisfy the creditors”, which is regularly the case in insolvency proceedings.
In addition, the managing director is liable under Section 15b V sentence 1 InsO for payments to shareholders that lead to the insolvency of the GmbH. This claim is also regularly asserted by an insolvency administrator after insolvency proceedings have been opened.
d) Impact for Creditors
As compensation for the limitation of liability, the capital maintenance system primarily serves the purpose of protecting the assets of the GmbH against interventions by the shareholders and ensuring that sufficient assets are retained for the satisfaction of company's creditors. Nevertheless, this objective can only be achieved to a limited extent (cf. the criticism of the current capital maintenance system in the literature set out below).
As the claim for reimbursement pursuant to Section 31 I GmbHG is a claim of the GmbH against its shareholder, company creditors who have obtained an enforcement order against the GmbH for a claim can seize the claim and have it transferred to them for collection (Sections 829, 835 German Code of Civil Procedure, Zivilprozessordnung – ZPO) in order to then take direct action against the shareholder who received the prohibited payment. However, it is generally almost impossible for an outside creditor who does not have access to the GmbH's books and business transactions to provide evidence.
From a tax perspective, a prohibited payment within the meaning of Section 30 I sentence 1 GmbHG can also constitute a hidden profit distribution (verdeckte Gewinnausschüttung - vGA).
According to the established jurisdition of the Federal Fiscal Court (BFH), a hidden profit distribution is deemed to exist if the company grants its shareholder a benefit outside of the distribution of profits under company law and this benefit has its origin in the company relationship. An origin in the company relationship is given if a prudent and diligent managing director would not have granted this benefit to a non-shareholder. Federal Fiscal Court, Resolution of 05.09.2023 – VIII R 2/20, DStZ 2024, 6, Entscheidung Detail | BundesfinanzhofAlso in this context, it is therefore generally a matter of transactions between the GmbH and its shareholder that do not comply with the arm's length principle (see above) - often in connection with excessive remuneration of the shareholder-managing director.
a) Background / Regulatory Purpose
Unless an obligation to make additional contributions (Section 26 et seq. Limited Liability Companies Act, Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG) is incorporated in the articles of association, which is not very common in practice, the shareholders are generally only obliged to make their contribution (Section 19 GmbHG) to the shares they have subscribed to and are not liable for the company's liabilities to its creditors beyond this.
Since, in contrast to a stock corporation (Section 150 German Stock Corporation Act, Aktiengesetz - AktG), a GmbH is not obliged to form reserves beyond the share capital (see below for the exception in the case of a so-called entrepreneurial company (UG)) and profits can in principle be withdrawn in full by the GmbH shareholders, only the share capital of the company is available to creditors as a liability substrate in extreme cases.
Although the possibility of operating in a legal form with limited liability such as a GmbH is intended by the legislator on the one hand to encourage entrepreneurial activity, this can also seduce companies to take high risks with low capital investment at the expense of creditors on the other hand. In this sense, the Federal Court of Justice (BGH) ruled in a decision on insolvency avoidance: “A secured shareholder who does not have to fear the fulfillment of his repayment claim will tend to take unreasonable, if not irresponsible, business risks in the performance of his management duties that affect only the unsecured creditors”, Federal Court of Justice, Judgement of 14.02.2019 – IX ZR 149,16, BGHZ 221, 100, Urteil des IX. Zivilsenats vom 14.2.2019 - IX ZR 149/16 - (bundesgerichtshof.de)For this reason, the law intends to ensure through various regulations that at least the share capital of the GmbH is fully paid up and protected against subsequent withdrawal by the shareholders.
b) Regulatory structure
aa) The legal concept in the GmbH
The share capital of a GmbH must amount to at least EUR 25,000 (Section 5 I GmbHG) and at the time of formation (i) at least one quarter (25%) of the nominal amount must be paid up on each share and (ii) at least half (EUR 12,500) of the minimum capital must be paid up in total, otherwise the company may not be entered in the commercial register (cf. Section 7 II GmbHG). If the share capital is not paid up in full immediately upon formation, the outstanding contributions that have not yet been paid in must be openly deducted from the reported share capital in the balance sheet (Section 272 I sentence 2 German Commercial Code – Handelsgesetzbuch, HGB). A resolution of the shareholders' meeting is generally required to obtain the outstanding contributions (Section 46 No. 2 GmbHG).
However, if the company becomes insolvent without the shareholders having previously resolved and effected payment of the outstanding contributions, the insolvency administrator is authorized to demand payment of the outstanding contributions even without a corresponding shareholder resolution. Federal Court of Justice, Judgement of 15.10.2007 – II ZR 216/06, ZIP 2007, 2416, Urteil des II. Zivilsenats vom 15.10.2007 - II ZR 216/06 - (bundesgerichtshof.de)If an outstanding contribution cannot be collected from a shareholder and also cannot be realized through other measures within the meaning of Sections 21 to 23 GmbHG, the co-shareholders are liable proportionately for this outstanding contribution of the shareholder originally liable to make a contribution (Section 24 GmbHG).
In addition to the above regulations on raising capital, i.e. the payment of share capital, Sections 30 et seq. GmbHG regulate the protection of the share capital against subsequent withdrawal by the shareholders.
Section 30 I sentence 1 GmbHG contains the fundamental principle that the assets of the GmbH required to maintain the share capital of the company may not be paid out to the shareholders (prohibition of repayment of capital contributions), whereby a repayment of capital contributions can take many forms in business transactions (see below for details). Section 30 I sentence 2 and sentence 3 GmbHG then contain exceptions, in particular for group structures (Section 30 I sentence 2 GmbHG) and for the repayment of shareholder loans (Section 30 I sentence 3 GmbHG), as the law on shareholder loans was fully incorporated in the German Insolvency Code (Insolvenzordnung - InsO) by the 2008 Act to Modernize the Law on Limited Liability Companies and Combat Abuses (MoMiG) Federal Law Gazette, BGBl. I 2008, S. 2026, Bundesgesetzblatt BGBl. Online-Archiv 1949 - 2022 | Bundesanzeiger Verlag(Section 39 I no. 5, IV and V InsO and Section 135 InsO).
If a prohibited payment is made to a shareholder, in whatever form, in breach of the prohibition in Section 30 I sentence 1 GmbHG, the shareholder is obliged to reimburse the payment received in breach of the prohibition in accordance with Section 31 I GmbHG. According to the prevailing opinion today, this also applies if the share capital has been refilled in the meantime by other means, for example through profits that have been earned again. Federal Court of Justice, Judgement of 29.05.2000 – II ZR 118/98, BGHZ 144, 336, Urteil des II. Zivilsenats vom 29.5.2000 - II ZR 118/98 - (bundesgerichtshof.de)
If the reimbursement of the prohibited payment cannot be obtained from the recipient, for example because the recipient has become insolvent in the meantime, the other shareholders are subsidiarily liable for the reimbursement of the prohibited payment in proportion to their shares (Section 31 III GmbHG). According to Section 31 III sentence 1 GmbHG, the subsidiarily liable only applies “insofar as the reimbursement amount is necessary to satisfy the creditors”, but since reimbursement claims pursuant to Sections 30, 31 GmbHG are typically asserted by the insolvency administrator in insolvency proceedings, the subsidiarily liability of the co-shareholders in insolvency proceedings would only be excluded if all creditor claims would be settled 100%, which in practice almost never happens.
If the co-shareholders had to reimburse the prohibited payment for the original recipient of the payment in accordance with Section 31 III GmbHG, they can take recourse against the managing directors in accordance with Section 31 VI GmbHG if the managing directors acted culpably, i.e. intentionally or negligently, when making the prohibited payment.
In addition, the managing directors may also be directly liable to the GmbH in accordance with Section 43 III sentence 1 GmbHG due to a prohibited payment within the meaning of Section 30 I GmbHG and are not exculpated in insolvency because they have acted upon the shareholders' directions (cf. Section 43 III sentence 3 GmbHG) or because the shareholders have apparently waived this claim as part of a “general settlement” or discharge (Section 43 II sentence 2 GmbHG in conjunction with Section 9b I GmbHG), as the company cannot effectively waive claims in advance that serve to protect creditorsverzichten. Federal Court of Justice, Judgement of 16.09.2002 – II ZR 107/01, ZIP 2002, 2128, Urteil des II. Zivilsenats vom 16.9.2002 - II ZR 107/01 - (bundesgerichtshof.de)
bb) Specific aspects of an entrepreneurial company (UG)
For an entrepreneurial company (Unternehmergesellschaft – UG) within the meaning of Section 5a GmbHG, some special provisions apply with regard to raising and maintaining capital.
It is particularly important for the business transactions that the minimum share capital of EUR 25,000.00 may also be undercut in a UG; this can rather be founded with any share capital below EUR 25,000.00 denominated in full euros. However, the company must then use the addition “Unternehmergesellschaft (haftungsbeschränkt)” or “UG (haftungsbeschränkt)” in the company name as a reference to the lower share capital (Section 5a I GmbHG).
In the case of a UG, the share capital must be paid up in full immediately upon formation (Section 5a II GmbHG) and the UG is obliged to form a statutory reserve into which a quarter (25%) of the net profit of the year, reduced by any loss carried forward from the previous year, must be allocated and which may only be used for the purposes specified in Section 5a III GmbHG. If the UG has “accumulated” a sufficiently high amount in the statutory reserve, this can be converted into share capital in accordance with Section 57c GmbHG as part of a capital increase from company funds. If the UG thereby reaches the minimum capital of EUR 25,000 (Section 5 I GmbHG), it is converted into a GmbH and the special provisions of Sections 5a I-IV GmbHG no longer apply. However, the company may continue to use the legal name “UG (haftungsbeschränkt)” (Section 5a V Hs. 2 GmbHG) if it does not wish to use the legal name “GmbH” afterwards (Section 4 GmbHG).
Failure to create statutory reserves, on the other hand, results in the annual financial statements being null and void and any resolutions on the distribution of profits based on these annual financial statements are invalid in accordance with Section 256 I No. 1 AktG. Rowedder/Pentz/Pentz, Commentary on Limited Liability Companies Act (GmbHG), 7th. edition (2022), § 30 Rn. 8a
According to the completely prevailing opinion in legal literature, the statutory reserve in the UG also participates in the capital protection of Section 30 GmbHG, i.e. (profit) distributions by shareholders are only permitted in the UG if the net assets of the company still cover the share capital plus the statutory reserve after the distribution deckt. Scholz/Verse, Commentary on Limited Liability Companies Act (GmbHG), Volume I (§§ 1-34), 13th edition (2022), § 30 Rn. 10 ff.; Noack/Servatius/Haas/Servatius, Commentary on Limited Liability Companies Act (GmbHG), 23rd edition (2022), § 30 Rn. 14; Altmeppen/Altmeppen, Commentary on Limited Liability Companies Act (GmbHG), 11th edition (2023), § 30 Rn. 11; Pentz (cf. footnote 6), § 30 Rn. 8a
In this context, withdrawals by shareholders during the year may cause a problem, as the share capital and the legal reserve already formed in the past are known at the time of a withdrawal, but not the amount of the legal reserve still to be formed in the current financial year, as the annual result may still change in the course of the financial year and the shareholders would be able to influence the annual result and thus the amount of the reserve to be formed through (concealed) withdrawals during the year, which may not be immediately recognizable as prohibited payments within the meaning of Section 30 GmbHG.
Therefore, withdrawals during the year are generally considered forbidden in the UG, even if they leave the share capital and the reserve already formed in the past unaffected. Nevertheless, withdrawals made during the year must then be returned in accordance with Section 31 GmbHG, whereby it is a disputed question whether the obligation to return is limited to a quarter (25%) of the amount withdrawn during the year if the share capital and the reserve already formed in the past remain untouched by the withdrawal, of this opinion: Verse (cf. footnote 7), § 30 Rn. 11; Altmeppen (cf. footnote 7); § 30 Rn. 11 or whether the entire amount withdrawn must be returned because the annual result may still change by the end of the financial year and the amount withdrawn may still turn out to be too high in retrospect. of this opinion: Pentz (cf. footnote 6), § 30 Rn. 8a
Against this background, a shareholder-managing director of a UG should preferably refrain from making withdrawals during the year and instead ensure that he can cover his costs of living on a transparent contractual basis with his (reasonable) managing director's salary. cf. also the explanatory memorandum to the law: BT-Drucks. 16/6140, p. 32, 1606140 (bundestag.de)
c) The term “Impairment of share capital” within the meaning of Section 30 I GmbHG
Section 30 et seq. GmbHG is intended to protect the share capital of the GmbH, which is referred to as “subscribed capital” in the balance sheet (Section 42 I GmbHG, Section 266 III A. I. HGB, Section 272 I S. I HGB).
The relevant share capital amount that must be covered in order for a payout to be permitted in accordance with Section 30 GmbHG is the share capital amount stated in the articles of association and registered in the commercial register, irrespective of whether the contributions have already been paid in full or the company has acquired its own shares in the meantime (Section 33 GmbHG). Verse (cf. footnote 7), § 30 Rn. 55; Servatius (cf. footnote 7), § 30 Rn. 14
In order to determine whether the share capital is covered at the time of payment to a shareholder, the so-called “net assets” of the GmbH must be determined (so-called short-balance test). For this purpose, an interim balance sheet must be prepared at the time of the payment in accordance with the principles of commercial law by extrapolating the book values to the time of payment. The net assets are then calculated from the difference between the assets and the “real” liabilities of the GmbH, i.e. the liabilities (provisions and liabilities) Verse (cf. footnote 7), § 30 Rn. 58 ff.; Servatius (cf. footnote 7), § 30 Rn.15 ff.
If the net assets determined in this way are less than the relevant share capital amount, this is referred to as a “ short balance”. A payout at the time of a short balance would then violate Section 30 I GmbHG or, in other words: Payments to shareholders that would result in an short balance (at least in the amount in which the short balance is caused by the payment) or would deepen an existing short balance are prohibited. Verse (cf. footnote 7), § 30 Rn. 52; Servatius (cf. footnote 7), § 30 Rn.19
Indicatively, the question of whether there is a short balance can already be answered on the basis of the financial statements: If the equity shown in the financial statements, i.e. the share capital plus the other equity items (capital reserves, retained earnings, profit / loss carried forward, net profit / loss for the year) is higher than the relevant share capital amount, there is no short balance.
In cases of doubt, however, an exact examination must be carried out by drawing up an interim balance sheet at the time of payment, for example if the share capital was only barely covered in the last annual financial statements and further losses have been incurred in the meantime.
Furthermore, there is not only a shortfall in the balance sheet, but also overindebtedness if a deficit not covered by equity is shown in the balance sheet. Payments to shareholders in the stage of balance sheet over-indebtedness are of course even more prohibited from the perspective of Section 30 GmbHG. Federal Court of Justice, Judgement of 25.02.2002 – II ZR 196/00, BGHZ 150, 61, Urteil des II. Zivilsenats vom 25.2.2002 - II ZR 196/00 - (bundesgerichtshof.de); Verse (cf. footnote 7), § 30 Rn. 54
However, balance sheet over-indebtedness must be strictly separated from over-indebtedness under insolvency law within the meaning of Section 19 InsO, which would oblige a GmbH to file for insolvency (Section 15a I InsO), as over-indebtedness under insolvency law requires a negative going concern prognosis in addition to arithmetical over-indebtedness, which must be determined through a special over-indebtedness status that must be distinguished from the commercial balance sheet. Verse (cf. footnote 7), § 30 Rn. 54
However, according to the case law of the Federal Court of Justice, over-indebtedness in the balance sheet - as evidenced by a deficit not covered by equity - is an indication that there may also be over-indebtedness under insolvency law, Federal Court of Justice, Judgement of 19.11.2019 – II ZR 53/18, NZI 2020, 167, Urteil des II. Zivilsenats vom 19.11.2019 - II ZR 53/18 - (bundesgerichtshof.de) which the managing director must consider as a reason to investigate whether the company is already insolvent – otherwise he would be acting with a lack of diligence and negligently. Noack/Servatius/Haas/Haas, Commentary on Limited Liability Companies Act (GmbHG), 23rd edition (2022), § 64 Rn. 138 In proceedings against the managing director for reimbursement of prohibited payments after the insolvency of the company has occurred (Section 15b InsO), the culpability of the managing director is deemed to be presumed. It is sufficient that the insolvency was recognizable, which can also be concluded from a deficit not covered by equity in the commercial balance sheet.
d) The term “prohibited payment” within the meaning of Section 30 GmbHG
aa) The definition of payment
For the protection of creditors, the term “payment” is defined extensively and covers not only pure cash payments, but also any reduction in the company's assets (without compensatory consideration). It therefore covers benefits of all kinds that lead to a reduction in the company's assets, such as the transfer of property or rights or the waiver of claims. Verse (cf. footnote 7), § 30 Rn. 18; Servatius (cf. footnote 7), § 30 Rn. 33 The assumption of liabilities or the creation of new liabilities to third parties can also be a “prohibited payment” within the meaning of Section 30 GmbHG, provided that this is done at the request or in the interest of the shareholder (e.g. the assumption of liabilities of the shareholder without compensation or the creation of obligations to third parties who provide their services to the shareholder for private use), as from the perspective of the creditors concerned, the increase in debts is no different from the withdrawal of assets. Federal Court of Justice, Judgement of 06.11.2018 – II ZR 199/17, BGHZ 220, 179, Urteil des II. Zivilsenats vom 6.11.2018 - II ZR 199/17 - (bundesgerichtshof.de)
A balancing perspective is always decisive. If the GmbH's payment to its shareholder is offset by an equivalent consideration, which may consist of the delivery of an item, the provision of services or even the acquisition of a valuable (!) claim of the GmbH against its shareholder, there is no reduction in assets from a balance sheet perspective that could be considered an impairment of the share capital.
Therefore, the fulfillment of a (legally valid) liability to or at the request of the shareholder does not generally constitute a “prohibited payment”, as the payment is offset by the elimination of the liability from a balance sheet perspective. In this case, however, it must be examined whether the GmbH has received equivalent consideration for incurring the liability. Verse (cf. footnote 7), § 30 Rn. 22
bb) Persons concerned by the prohibition of payments
(1) Current, former and future shareholders
In principle, the prohibition of payment in Section 30 I GmbHG only applies to payments by the GmbH to the current shareholders registered in the list of shareholders (Section 16 I sentence 1 GmbHG). In the literature, it is proposed that also the actual shareholder who is not registered in the list of shareholders should be subject to the payment prohibition, as otherwise unacceptable gaps in protection would arise because shareholders could simply circumvent the payment prohibition by not registering in the list of shareholders. Verse (cf. footnote 7), § 30 Rn. 29
In exceptional cases, however, former or future shareholders may also be subject to the payment prohibition.
Former shareholders may be subject to the payment prohibition and be obliged to return payments received from the GmbH if the payment is made with regard to the (former) shareholder relationship, which can generally be assumed if the former shareholder was still a shareholder when the payment obligation was established. Verse (cf. footnote 7), § 30 Rn. 34; Servatius (cf. footnote 7), § 30 Rn. 23 This could include, for example, severance or pension payments made after the person concerned has resigned.
Conversely, future shareholders may already be addressees of the payment prohibition if the company grants benefits that reduce its company assets specifically with regard to the future shareholder position. One could think in particular of cases in which the GmbH provides the future shareholder with funds for the purpose of acquiring shares or grants collateral for financing the purchase price (leveraged buyout). Federal Court of Justice, Judgement of 18.06.2007 – II ZR 86/06, BGHZ 173, 1, Urteil des II. Zivilsenats vom 18.6.2007 - II ZR 86/06 - (bundesgerichtshof.de)
(2) Payments to third parties deemed to be a payment to the shareholder
For the protection of creditors, in certain constellations capital protection is not only extended in terms of time (by including former or future shareholders), but also in terms of personal relationships, as payments by the GmbH to third parties may be qualified as payments to a shareholder.
According to the general principles, a payment by the GmbH to a third party can be treated as a payment to the GmbH shareholder if
In addition, the special characteristics of certain cases defined in case law must be considered:
(a) Payments to third parties as an (indirect) benefit to the shareholder
Beyond the obvious cases in which, for example, the GmbH fulfills the shareholder's obligations to third parties or acquires items for the shareholder's private use, cases are particularly problematic, in which a benefit provided by the GmbH serves the shareholder's purely idealistic interests without the shareholder itself deriving an original financial benefit. An example might be cases in which the GmbH makes donations or gifts to organizations or associations that the shareholder supports on a non-material basis.
In order to prevent excessive liability of the shareholder for benefits provided by the GmbH to third parties, two prerequisites must be met in such cases in order to classify the benefit to a third party as a benefit to the shareholder: On the one hand, it must be examined whether the payment was (still) in the legitimate interests of the company (e.g. sponsoring) or purely served the shareholder's own interests outside the company; on the other hand, it must be examined whether the payment was made by the GmbH at the request of the shareholder or in any case with the shareholder's consent. If these prerequisites are met, the shareholder himself is obliged to reimburse the payment to the GmbH in accordance with Section 31 I GmbHG, as it makes no difference whether the shareholder receives a direct payment from the GmbH and then passes it on to a third party or arranges for the GmbH to make a direct payment to the beneficiary third party. Verse (cf. footnote 7), § 30 Rn. 37; Servatius (cf. footnote 7), § 30 Rn. 26
(b) Payments to persons associated with the shareholder
Payments to companies or persons who have a close relationship with the shareholder can also be regarded as a “prohibited payment” to the shareholder. A differentiation is to be made between the following constellations:
(aa) Close relatives
The handling of payments by the GmbH to close relatives of the shareholder is problematic and has not yet been conclusively clarified, as the close relationship initially appears “suspicious”, but on the other hand does not automatically justify equating a payment to the third party with a payment to the shareholder itself.
According to the general principles outlined above, payments by the GmbH to relatives may constitute “prohibited payments” to the shareholder if the shareholder himself is a direct beneficiary (e.g. fulfillment of the shareholder's alimony obligations by the GmbH) or has caused the payment to the relative in his own non-business interests (e.g. donation to the spouse's association without this being in the interest of the GmbH). Verse (cf. footnote 7), § 30 Rn. 40
Beyond these general principles, however, the treatment of payments made by the GmbH to relatives of the shareholder has not yet been conclusively clarified. In any case, it is irrelevant whether the payment is made directly to a close relative or to a company in which the relative has a significant shareholding. Verse (cf. footnote 7), § 30 Rn. 40; Pentz (cf. footnote 6), § 30 Rn. 25
In the literature, it is argued that, in the absence of a reasonable business interest on the part of the GmbH in the payment, the shareholder should be presumed to have caused the payment to the relative, so that the shareholder must provide evidence that he did not cause the payment. Verse (cf. footnote 7), § 30 Rn. 40; Servatius (cf. footnote 7), § 30 Rn. 26; different opinion: Pentz (cf. footnote 6), § 30 Rn. 25, who does not assume a presumption, but only an indication This should apply in any case to the group of persons named in Sections 89 III AktG, 138 I InsO (spouse, life partner, children, siblings), while for more distant relatives the conditions for (indirect) payment to the shareholder must be positively identified. Servatius (cf. footnote 7), § 30 Rn. 26; Pentz (cf. footnote 6), § 30 Rn. 26
If the prerequisites for equating the payment to the relative with a payment to the shareholder are met or if the shareholder cannot disprove the presumption of causation, the question arises as to whether, in addition to the shareholder, the relative as the actual recipient of the payment is also obliged to reimburse the payment in accordance with Section 31 I GmbHG. This is predominantly favored in the literature Servatius (cf. footnote 7), § 30 Rn. 26; Pentz (cf. footnote 6), § 31 Rn. 10; different opinion: Verse (cf. footnote 7), § 30 Rn. 415 with reference to older case law Federal Court of Justice, Judgement of 28.09.1981 – II ZR 223/80, BGHZ 81, 365 at least for the group of persons named in Section 89 III AktG (spouse, life partner, minor child), provided that the recipient (or in the case of a minor child, the legal representative) was aware or should have been aware of the breach of the capital maintenance requirement associated with the payment.
(bb) Affiliated companies
Payments by the GmbH to affiliated companies are a very relevant category in practice. A difference must be made here between horizontal relationships, where the transferring company and the recipient company are linked by the same shareholder and are therefore sister companies, and vertical relationships, where a shareholder can exert influence on the transferring GmbH via several levels of participation. Combinations of different attribution criteria are also conceivable.
Horizontal connections (sister companies)
First of all, payments to a sister company may also constitute a “prohibited payment” within the meaning of Section 30 I GmbHG in accordance with the general principles (see above) if this also constitutes an indirect benefit to the shareholder itself (e.g. repayment of a liability of the shareholder to the sister company) or if the payment to the sister company was initiated by the shareholder.
Beyond these general principles, a payment by the GmbH to a sister company controlled by the same direct or indirect shareholder is, according to the case law of the BGH, treated as a payment to the shareholder if the shareholder has also a significant stake in the recipient company and can exercise a controlling influence there, so that it can also demand payment to itself from the recipient company by virtue of its authority to issue instructions. Federal Court of Justice, Judgement of 31.05.2011 – II ZR 141/09, BGHZ 190, 7, Urteil des II. Zivilsenats vom 31.5.2011 - II ZR 141/09 - (bundesgerichtshof.de)
The payment to a sister company is therefore generally considered equivalent to a payment to the shareholder if the shareholder of the GmbH making the payment (A-GmbH) also holds a significant shareholding in the recipient company (B-GmbH), which is sufficient to issue instructions and pass resolutions by majority vote, and therefore can demand payment to itself by virtue of this majority shareholding in the recipient company (B-GmbH).
However, there may also be cases in which these requirements are not met despite the GmbH shareholder holding a majority interest in the recipient company, e.g. if the GmbH shareholder does not have a controlling influence due to existing special voting rights or majority requirements in the articles of association, or if the recipient company is a stock corporation, because the management board of a stock corporation manages the business “under its own responsibility” (Section 76 I AktG), i.e. it is not bound by the resolutions and instructions of the shareholders' meeting. Verse (cf. footnote 7), § 30 Rn.44
Whether, in the case of payments between horizontally affiliated companies, the recipient company is liable (jointly and severally) alongside the direct shareholder For the joint and several liability of the recipient and the shareholder: Federal Court of Justice, Judgement of 13.11.1995 – II ZR 113/94, NJW 1996, 589; Pentz (o. Fußn. 6), § 31 Rn. 10 or only the direct shareholder is liable for reimbursement of the prohibited payment, For the sole liability of the direct shareholder: Verse (cf. footnote 7), § 30 Rn. 46; Servatius (cf. footnote 7), § 30 Rn. 27a is answered inconsistently in jurisdiction and literature.
Vertical connections (parent and subsidiary or sub-subsidiary companies)
Payments between vertically affiliated companies can also occur, particularly in corporate groups:
The general principles also apply here:
A payment by the second-tier subsidiary (C-GmbH) to its direct shareholder (B-GmbH) already constitutes a payment within the meaning of Section 30 I GmbHG to the direct shareholder (B-GmbH) according to general provision.
A payment by the sub-subsidiary (C-GmbH) to the parent company (A-GmbH) can also be treated as a payment to the direct shareholder of the sub-subsidiary (B-GmbH) if the payment was in the interest of the direct shareholder (B-GmbH), for example because the payment by the sub-subsidiary (C-GmbH) also repaid a liability of the subsidiary (B-GmbH) to the parent company (A-GmbH) Verse (cf. footnote 7), § 30 Rn. 47 In this case, the directly involved subsidiary (B-GmbH) would be obliged to reimburse a prohibited payment.
In addition, a payment by the second-tier subsidiary (C-GmbH) to the parent company (A-GmbH) can also be treated as a payment to a (direct or indirect) shareholder if the parent company (A-GmbH) has a significant interest in the subsidiary (B-GmbH) and can therefore exercise a controlling influence over the subsidiary (B-GmbH), which it uses to induce the second-tier subsidiary (C-GmbH) via the subsidiary (B-GmbH) to make the payment (Example: A-GmbH, which holds a 100% interest in B-GmbH, instructs the management bodies of B-GmbH to instruct the management bodies of C-GmbH, as a wholly-owned subsidiary of B-GmbH, to make payment to the parent company (A-GmbH)). In this case, the parent company (A-GmbH) would also be obliged to reimburse a prohibited payment to the second-tier subsidiary (C-GmbH) in accordance with Section 31 I GmbHG. on the law on shareholder loans: Federal Court of Justice, Judgement of 21.02.2013 – IX ZR 32/12, BGHZ 196, 220, Urteil des IX. Zivilsenats vom 21.2.2013 - IX ZR 32/12 - (bundesgerichtshof.de); Verse (cf. footnote 7), § 30 Rn. 47
An (indirect) payment to the parent company (A-GmbH) can also be assumed if the parent company uses its influence in the sub-subsidiary (C-GmbH) via the subsidiary (B-GmbH) to induce the sub-subsidiary to make a payment to another (direct) subsidiary (E-GmbH) of the parent company (A-GmbH):
e) Exceptions to the payment prohibition (Section 30 I sentences 2 and 3 GmbHG)
For certain constellations in which there is objectively a payment by the GmbH to its shareholder, Section 30 I sentences 2 and 3 GmbHG stipulate three exceptions to the payment prohibition, i.e. the payments are not considered to be an infringement of share capital or a prohibited payment if the requirements of the exceptions are met, even at the stage of a short balance.
aa) Payments within the contractual group (Section 30 I sentence 2, 1st alternative GmbHG)
Payments made by a GmbH to its (direct or indirect) shareholder do not constitute prohibited payments within the meaning of Section 30 I GmbHG, even in the stage of a short balance, if a control and profit transfer agreement within the meaning of Section 291 I AktG exists between the shareholder (e.g. group parent company) as the controlling company and the GmbH as the controlled company.
This is justified by the fact that the controlling company is obliged to compensate for any annual losses of the controlled GmbH arising during the term of the agreement (Section 302 AktG by analogy) and must provide security to the creditors of the controlled GmbH upon termination of the agreement (Section 303 AktG by analogy). From the creditors' perspective, this achieves a level of creditor protection equivalent to the capital maintenance system (Sections 30 et seq. GmbHG). Verse (cf. footnote 7), § 30 Rn. 72 f.
However, it is disputed and - as far as can be seen - not yet clarified by the Federal Court of Justice whether the “group privilege” only applies if and to the extent that the loss compensation claim of the controlled GmbH against the controlling company is valuable. This is partly agreed in the literature, Verse (cf. footnote 7), § 30 Rn. 75; Servatius (cf. footnote 7), § 30 Rn. 45 partly denied Pentz (cf. footnote 6), § 30 Rn. 62 with reference to the practical evaluation problems associated with this.
For the managing directors of the controlled GmbH, this is of limited help. Assuming that the capital maintenance requirement of Section 30 I sentence 1 GmbH applies again if the loss compensation claim is not valuable any longer, they may be liable in accordance with Section 43 III sentence 1 GmbHG if payments are nevertheless made to the controlling company. If, on the other hand, the capital maintenance requirement in group constellations is regarded as generally suspended irrespective of the value of the loss compensation claim, the general obligation to exercise due care (Section 43 I GmbHG) requires that the managing directors of the controlled GmbH continuously monitor the solvency of the controlling company and react to deteriorations that jeopardize the fulfillment of the loss compensation claim by requesting collateral or, if necessary, by terminating the intercompany agreement (Section 297 AktG). Federal Court of Justice, Judgement of 01.12.2008 – II ZR 102/07, BGHZ 179, 71, Urteil des II. Zivilsenats vom 1.12.2008 - II ZR 102/07 - (bundesgerichtshof.de); Pentz (cf. footnote 6), § 30 Rn. 62 If they fail to do so, they may also be liable in accordance with Section 43 II GmbHG.
bb) Valuable claim for consideration or repayment (Section 30 I sentence 2, 2nd alternative GmbHG)
The second alternative listed in Section 30 I sentence 2 GmbHG establishes an exception for payments by the GmbH to its shareholder that are covered by a valuable claim for consideration or repayment against the shareholder.
With this new regulation, the legislator wanted to eliminate uncertainties as a result of the so-called “November Ruling” of the Federal Court of Justice Federal Court of Justice, Judgement of 24.11.2003 – II ZR 171/01, BGHZ 157, 72, Urteil des II. Zivilsenats vom 24.11.2003 - II ZR 171/01 - (bundesgerichtshof.de) particularly with regard to cash pooling, which is particularly common in corporate groups. In this ruling, the Federal Court of Justice ruled that a prohibited payment within the meaning of Section 30 I GmbHG also applies in case of a loan to a shareholder if the claim for repayment is valuable but only falls due at a later date, as the exchange of liquid assets for a deferred claim would impair the company's financial position and the chances of its creditors being satisfied.
However, the legislator of the MoMiG Federal Law Gazette, BGBl. I 2008, S. 2026, Bundesgesetzblatt BGBl. Online-Archiv 1949 - 2022 | Bundesanzeiger Verlag has clearly decided in favor of the balancing approach and clarified with Section 30 I sentence 2 GmbHG that cash transfers from the subsidiary to the group parent company managing the cash pool, which are generally treated as loans in legal terms, are also permissible outside of contractual groups (see above) as long as the creditworthiness of the group parent company is not in doubt and the GmbH is therefore entitled to a full repayment claim against the group parent company.
This is because, according to the relevant balancing approach, the assets of the GmbH are not reduced if the disposal of liquid funds is offset by the receipt of an equivalent repayment claim against the shareholder (pure asset swap). Federal Court of Justice, Judgement of v. 01.12.2008 – II ZR 102/07, BGHZ 179, 71, Urteil des II. Zivilsenats vom 1.12.2008 - II ZR 102/07 - (bundesgerichtshof.de) In this respect, the relevant time of evaluation is the time of disbursement; subsequent deteriorations in the creditworthiness of the Group parent company do not retroactively turn the originally permissible disbursement into an impermissible one. Federal Court of Justice, Judgement of 01.12.2008 – II ZR 102/07, BGHZ 179, 71, Urteil des II. Zivilsenats vom 1.12.2008 - II ZR 102/07 - (bundesgerichtshof.de); Verse (cf. footnote 7), § 30 Rn. 89 f.
However, even here the managing directors are obliged to continuously monitor the recoverability of the claim for consideration or restitution and to react to any deterioration in the shareholder's creditworthiness by requesting collateral or, if necessary, making the claim for restitution due.
In order to fulfill this obligation, the Federal Court of Justice does not consider it necessary for every loan granted to the shareholder, but for longer-term loans and as part of a cash management system, that the managing directors set up a suitable information or “early warning system” between the parent company and the subsidiary, without, however, specifying how this system should be structured. Federal Court of Justice, Judgement of 01.12.2008 – II ZR 102/07, BGHZ 179, 71, Urteil des II. Zivilsenats vom 1.12.2008 - II ZR 102/07 - (bundesgerichtshof.de); Verse (cf. footnote 7), § 30 Rn. 89 f If the managing directors of the subsidiary fail to do so and are therefore unable to react to a deterioration in the shareholder's creditworthiness due to a lack of information, this may constitute a violation of the obligation to exercise due care (Section 43 II GmbHG).
cc) Repayment of shareholder loans (Section 30 I sentence 3 GmbHG)
Section 30 I sentence 3 GmbHG relates to the reverse case, namely that the GmbH repays a loan granted to it by its shareholder in full or in part.
From a purely balancing perspective, this would not lead to a reduction in Net assets, but merely to a reduction in the balance sheet total, as the disposal of liquid funds on the assets side is offset by the corresponding elimination of the liability on the liabilities side.
However, until the Act to Modernize the Law on Limited Liability Companies and Combat Abuses (MoMiG) Federal Law Gazette, BGBl. I 2008, S. 2026, Bundesgesetzblatt BGBl. Online-Archiv 1949 - 2022 | Bundesanzeiger Verlag came into force, case law had treated loans granted by a shareholder in the “crisis” of the GmbH or not withdrawn as equity (so-called equity-replacing loans), with the consequence that such repayments by the GmbH had to be reimbursed in accordance with Sections 30, 31 GmbHG if they were at the expense of the share capital.
The MoMiG fundamentally reformed the law on shareholder loans and incorporated it into the Insolvency Code in a legally neutral manner (Sections 39, 135 InsO). Under the new law, the repayment of a shareholder loan in the last year before filing for insolvency is generally subject to insolvency contestation (Section 135 I no. 2 InsO).
It is also contestable (vis-à-vis the shareholder) if the GmbH repays a loan from a third party (e.g. a bank) within the last year before filing for insolvency, for which the shareholder had provided security or a guarantee (Section 135 II InsO). In this case, the shareholder who was released from liability by the GmbH's repayment to the third party must reimburse the repayment to the insolvency estate up to the amount of the security or guarantee (Section 143 III InsO).
Since the handling of repayments on shareholder loans (or shareholder-secured third-party loans) is now fully regulated by the Insolvency Code, Section 30 I sentence 3 GmbHG clarifies that such repayments on shareholder loans do not generally constitute a prohibited payment within the meaning of Section 30 I sentence 1 GmbHG, even in the stage of a short balance.
f) Analogous application of Sections 30 et seq. GmbHG for the GmbH & Co. KG
Of great practical importance, because it is a widely used legal form, is the question of the applicability of the capital maintenance rules pursuant to Sections 30 et seq. GmbHG for the GmbH & Co. KG.
In a limited partnership (Kommanditgesellschaft – KG), the basic legal concept provides that the limited partners are only personally liable for company debts up to the amount of their capital contribution (limited partnership contribution) entered in the commercial register and can release themselves from personal liability by making their contribution to the partnership (however, this can be revived in the event of a return of capital contributions, Section 172 IV HGB), while the personally liable partners (general partners) have unlimited liability for company debts (Sections 161 II, 126 HGB). The business of the limited partnership is managed by the personally liable partners (general partners), while the limited partners are excluded from representing and managing the limited partnership (Sections 164, 170 I HGB).
If a GmbH is appointed as the general partner of the KG, which is generally common and accepted today, this has the consequence that the general partner, which in principle has unlimited liability according to the statutory concept, is a limited liability company and, accordingly, there is also a de facto limitation of liability on the general partner side to the assets of the GmbH. In the case of the GmbH & Co. KG, the managing directors of the GmbHG as legal representatives of the general partner GmbH (Section 35 GmbHG) conduct the business of the KG.
Typically, the same persons are also limited partners of the limited partnership and shareholders of the GmbH and often, but not necessarily, also managing directors of the GmbH.
In the constellation of a GmbH & Co. KG, the following case constellations must be distinguished from the perspective of capital maintenance law (Sections 30 et seq. GmbHG): (1) payments from the partnership assets to a shareholder, (2) payments from the GmbH assets to a shareholder and (3) payments from the GmbH to the partnership.
aa) Payments from the partnership assets to a shareholder
Payments from the partnership assets can have a negative impact on the share capital of the general partner GmbH in two ways:
If the general partner GmbH holds an interest in the assets of the partnership, which is of course rare in practice, a payment in the sense of a reduction of the assets of the partnership can lead to a reduction in the value of the GmbH's interest in the partnership, thereby affecting the share capital of the GmbH. Verse (cf. footnote 7), § 30 Rn. 130
More important in practice, however, is the case where the limited partnership is in financial trouble and there are doubts as to whether it will still be able to meet its liabilities in full. Since the GmbH is “personally” liable for the liabilities of the partnership according to the legal concept (Sections 161 II, 126 HGB), the GmbH would then have to create a provision in its balance sheet due to an impending claim by creditors of the partnership or, after a corresponding claim was raised, a liability that would no longer be offset in the balance sheet by a fully-value indemnification or reimbursement claim (Sections 161 II, 105 III HGB in conjunction with Section 716 I BGB) against the partnership.
If, at this stage, a payment from the partnership assets to a shareholder leads to a short balance at the GmbH or deepens such a short balance, the asset-reducing payment from the partnership assets to the shareholder constitutes a prohibited payment within the meaning of Section 30 I sentence 1 GmbHG with the consequence that the shareholder as the recipient of the payment is obliged to return the payment in accordance with Section 31 I GmbHG. Federal Court of Justice, Judgement of 28.01.2020 – II ZR 10/19, BGHZ 224, 235, Urteil des II. Zivilsenats vom 28.1.2020 - II ZR 10/19 - (bundesgerichtshof.de)
This applies in any case if the payment is made from the partnership assets to a shareholder (only) of the general partner GmbH or to a limited partner of the partnership who is also a shareholder of the GmbH. Verse (cf. footnote 7), § 30 Rn. 131
However, the Federal Court of Justice also obliges the shareholder who is only a limited partner of the partnership and not also a shareholder of the GmbH (so-called “only limited partner”) to reimburse prohibited payments at the expense of the share capital of the GmbH, if there is no natural person in addition to the general partner GmbH who is personally liable for the liabilities of the partnership. Federal Court of Justice, Judgement of 09.12.2014 – II ZR 360/13, ZIP 2015, 322, Urteil des II. Zivilsenats vom 9.12.2014 - II ZR 360/13 - (bundesgerichtshof.de)
According to established jurisdiction, the partnership and not the GmbH is then entitled to the reimbursement claim analogous to Section 31 I GmbHG. Verse (cf. footnoe 7), § 30 Rn. 132
In addition, the managing directors of the general partner GmbH, who initiated the payment from the assets of the partnership, may be obliged to compensate the partnership for the resulting damage in the event of an intentional or negligent breach of the capital maintenance requirement in accordance with Section 43 III sentence 1 GmbHG. Federal Court of Justice, Judgement of 09.12.2014 – II ZR 360/13, ZIP 2015, 322, Urteil des II. Zivilsenats vom 9.12.2014 - II ZR 360/13 - (bundesgerichtshof.de)
Even though the legal form of a GmbH & Co. KG is widely used in practice - particularly for tax reasons - shareholders of a GmbH & Co. KG should be advised to act with restraint with regard to withdrawals from the partnership assets, which are not prohibited in principle, and, taking into account the (dispositive) withdrawal restriction of Section 169 I HGB, to limit themselves to the withdrawal of profits that have been determined and allocated to them (Sections 161 II, 120 II, 122 HGB). Especially in the crisis of the GmbH & Co. KG withdrawals beyond the formal profit distribution may not only lead to the revival of the limited partners' personal liability (Section 172 IV HGB), but also, from the perspective of capital maintenance law, to repayment claims pursuant to Section 31 I GmbHG analogously or - in the case of shareholder-managers - claims for damages pursuant to Sections 43 III sentence 1 GmbHG. These consequences are often overseen in practice and can lead to “unpleasant surprises” in the insolvency of the GmbH & Co. KG.
bb) Payments from the GmbH assets to a shareholder
If the GmbH makes a payment to a shareholder who is only or also a shareholder of the GmbH, the permissibility of such payments is governed directly by Section 30 I GmbHG.
However, even if the general partner GmbH makes a prohibited payment within the meaning of Section 30 I GmbHG from its assets to a shareholder who is only a limited partner of the KG and not also a shareholder of the GmbH, the latter should be obliged to make reimbursement in accordance with Section 31 I GmbHG if, in addition to the general partner GmbH, there is no natural person as a further general partner who is personally liable for the company debts. In this case, the GmbH is entitled to reimbursement. Verse (cf. footnote 7), § 30 Rn. 133; Pentz (cf. footnote 6), § 30 Rn. 119
cc) Payments from the GmbH to the partnership
If the same persons are involved as shareholders in the GmbH and limited partners in the KG, the question arises as to how payments made by the GmbH to the KG are to be assessed, for example if the GmbH grants the KG a loan. In particular, the question is whether the payment by the GmbH to the KG is to be treated in the same way as a payment to a GmbH shareholder.
Some Higher Regional Courts have denied a transfer of assets in favor of a shareholder in such cases because the GmbH and KG would form an “economic unit” and the payment by the GmbH to “its” KG could not be equated with a payment to the shareholders. In the context of raising capital, for example: Higher Regional Court of Jena, Judgement of 28.06.2006 – 6 U 717/05, ZIP 2006, 1534
However, the Federal Court of Justice did not agree with this “uniform approach” for the raising of capital (Section 19 GmbHG), but decided that the shareholder's contribution to the GmbH for the shares subscribed is to be regarded as not made if the GmbH immediately transfers the contributions received to the KG controlled by the same shareholders as a “loan”. Federal Court of Justice, Judgement of 10.12.2007 – II ZR 180/06, BGHZ 174, 370, Urteil des II. Zivilsenats vom 10.12.2007 - II ZR 180/06 - (bundesgerichtshof.de)
If this jurisdiction is also applied to capital maintenance (Sections 30 et seq. GmbHG), a payment made by the GmbH to the KG controlled by the same persons at the stage of a short balance may according to the general principles constitute a prohibited payment within the meaning of Section 30 I GmbHG, for example, because (i) the GmbH simultaneously repays a liability of the shareholder to the KG through the payment to the KG (indirect benefit) or (ii) a shareholder of the GmbH also exercises a controlling influence in the KG, so that he can withdraw the transferred funds from the KG at any time by virtue of control under company law. Verse (cf. footnote 7), § 30 Rn. 134; Servatius (cf. footnote 7), § 30 Rn. 69
a) Share Capital (Subscribed Capital)
aa) Explanatory notes
The relevant share capital amount that must be covered in order for a payout to be permitted in accordance with Section 30 GmbHG is the share capital amount stated in the articles of association and entered in the commercial register, irrespective of whether the contributions have already been paid in full or the company has acquired its own shares in the meantime (Section 33 GmbHG). Scholz/Verse, Commentary on Limited Liability Companies Act (GmbHG), Volume I (§§ 1-34), 13th edition (2022), § 30 Rn. 55; Noack/Servatius/Haas/Servatius, Commentary on Limited Liability Companies Act (GmbHG), 23rd edition (2022), § 30 Rn. 14
In order to determine whether the share capital is sufficiently funded at the time a payment to a shareholder, the so-called
a) Loan relationships between GmbH and shareholder
Loan transactions between the company and the shareholder are quite simple to categorize: The repayment of a loan granted to the GmbH by the shareholder does not constitute a prohibited disbursement (Section 30 I sentence 3 GmbHG), as such actions may be subject to contestation in insolvency (Section 135 InsO). However, the granting of a loan by the GmbH to the shareholder - even in the context of cash pooling - is only exempt from liability if the claim for repayment is valuable (Section 30 I sentence 2 GmbHG) so that it offsets the funds paid out in the balance sheet. In this respect, reference can be made to the above.
b) Transactions above or below market value
Beyond the corporate relationship, the
With regard to the relevant jurisdiction, first of all reference is made to the rulings listed under “Definitions” for the respective element of the statute.
In addition, decisions on the following interesting constellations can be mentioned:
a) Invalidity of the resolution to exclude a shareholder
Federal Court of Justice, Judgement of 11.07.2023 – II ZR 116/21 Federal Court of Justice, Judgement of 11.07.2023 – II ZR 116/21, BGHZ 237, 331 = ZIP 2023, 1943 = NZG 2023, 1555 = NJW 2023, 3164, Urteil des II. Zivilsenats vom 11.7.2023 - II ZR 116/21 - (bundesgerichtshof.de)
According to the jurisdiction of the Federal Court of Justice, the requirement to maintain capital also applies if the company intends to exclude a shareholder. If this is done by resolution of the shareholders'
In the literature, the system of capital maintenance in its current form is criticized in various ways as ineffective and inadequate with regard to creditor protection.
Not even the legally prescribed minimum capital of “only” EUR 25,000, depending on the size and business volume of the company, does necessarily guarantee an equity base that is adequate for business operations. Scholz/Verse, Commentary on Limited Liabilities Companies Act (GmbHG), Volume 1 (§§ 1-34), 13th edition (2022), § 30 Rn. 4; Noack/Servatius/Haas/Fastrich, Commentary on Limited Liabilities Companies Act (GmbHG), 23rd edition (2022), Introduction Rn. 7 ff.; Wicke/Bachmann/Fronhöfer/Bernauer, Munich Handbook of Corporate Law, Volume III (Limited Liability Company), 6th edition (2023), § 51 Rn. 1 If the company requires more capital for its business activities, financing by the shareholders beyond the
Section 30 and section 31 of the German Limited Liability Companies Act (GmbHG): Section 30 GmbHG, which contains the prohibition, is directly related to Section 31 GmbHG, which regulates the reimbursement claim in the event of payments that violate the prohibition.
Also to be seen in the context of capital maintenance (§ 30 GmbHG) is § 43 III GmbHG, as the managing director can be directly liable to the company under § 43 III sentence 1 GmbHG if they have made payments to shareholders in violation of the prohibition in § 30 I sentence 1 GmbHG and have acted negligently (§ 43 I GmbHG) in doing so.
The claimant of the reimbursement claim pursuant to Section 31 I GmbHG is generally the company, i.e. creditors of the GmbH can seize the claim and have it transferred to them for collection (Sections 829, 835 German Code of Civil Procdure, Zivilprozessordnung - ZPO). In insolvency proceedings over the assets of the GmbH, the insolvency administrator asserts the reimbursement claim against the recipient of the payment in accordance with Section 31 I GmbHG.
In addition, there may be competing claims for damages, e.g. due to existence-destroying interventions (Section 826 German Civil Code, Bürgerliches Gesetzbuch - BGB), which may exceed the claim for reimbursement under Section 31 GmbHG. Claims arising from insolvency contestation (Sections 129 et seq. German Insolvency Code, Insolvenzordnung - InsO), in particular due to gratuitous