The Second Civil Senate of the Federal Court of Justice, responsible for corporate law, has ruled on the liability of shareholders of a GmbH (limited liability company) when they economically re-establish a dormant company but fail to disclose this re-establishment to the commercial register.
The plaintiff is the insolvency administrator in the insolvency proceedings over the assets of a GmbH (limited liability company) founded in December 1993, whose corporate purpose was the distribution of medical remedies, aids, and care products, as well as trading in goods of all kinds. By the end of 2003, the GmbH had no assets whatsoever and generated no further sales. On July 21, 2004, the shareholders' meeting resolved to change the company name and corporate purpose, relocated the company's registered office, and appointed a new managing director. She registered these changes in the commercial register without disclosing the economic re-establishment, and commenced business operations in accordance with the new corporate purpose. On December 30, 2005, the defendant acquired the sole business share in the GmbH, with a nominal value of DM 50,000, for a price of €7,500. On February 8, 2007, insolvency proceedings were opened over the assets of the GmbH. The plaintiff recorded claims totaling €36,926.53 in the insolvency schedule and claims this amount from the defendant as the acquirer of all business shares in the GmbH.
The Regional Court dismissed the action, while the Higher Regional Court granted it in full. Upon the appeal (Revision) admitted by the Higher Regional Court, the Federal Court of Justice overturned the appellate judgment and referred the matter back to the appellate court for further clarification.
The Federal Court of Justice confirmed the Higher Regional Court's finding that the commencement of business operations with a changed corporate purpose on July 21, 2004, constituted an economic re-establishment. According to the jurisprudence of the Federal Court of Justice, an economic re-establishment is deemed to occur when the legal entity embodied in a GmbH exists as a legal entity without an enterprise and is subsequently equipped with one. In this context, it makes no difference whether a company deliberately founded 'on stock' for later use is activated, or whether, as in the decided case, a dormant company shell is reused.
According to the consistent jurisprudence of the Federal Court of Justice, in the event of an economic re-establishment, the shareholders are liable for replenishing the company's assets up to the amount of the share capital stated in the articles of association (liability for capital deficit). Furthermore, the economic re-establishment must be disclosed to the commercial register. It has previously been disputed in jurisprudence and legal literature how liability is structured if the required disclosure of the economic re-establishment is omitted. The Federal Court of Justice did not follow the view held by the Higher Regional Court that, in such a case, the shareholders are subject to unlimited liability for covering losses. Instead, it ruled that in the present case, for any liability of the defendant for a capital deficit, who may be liable as the acquirer of the business share, it depends on whether a capital gap existed between the company's assets and the statutory share capital at the time of the economic re-establishment in July 2004. Since the Higher Regional Court had not made any findings on this from its legal perspective, the matter was referred back to the appellate court for further clarification.
BGH Judgment of March 6, 2012 – II ZR 56/10
Lower Courts:
Traunstein Regional Court – Judgment of March 20, 2009 – 1 HKO 1743/07
Munich Higher Regional Court – Judgment of March 11, 2010 – 23 U 2814/09
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
