In principle, the liability of the shareholders of a GmbH is for the liabilities of the company Company excluded according to the GmbHG and judgments of the BGH (Federal Court of Justice). Against this background, it often makes sense to restructure a group of companies to avoid access by creditors to retained profits of the parent company. However, there are cases in which, according to the BGH's case law on the GmbHG Liability of the shareholder or the parent company. In such a case, the profits that were transferred to the mother would no longer be protected. The following compilation of the most important legal aspects differentiates between the liability of shareholders for the company's liabilities and the options for retaining the profits of a subsidiary GmbH in an "access-safe manner" against access from creditors. Managing Director are obliged according to the GmbHG to avoid corresponding liability.
Principle: No access to shareholder assets
In principle, creditors have no opportunity to access the assets of the shareholders or the parent company to satisfy their claims. This applies regardless of whether the shareholder or shareholders are natural persons or companies themselves, such as GmbH. However, there are exceptions to this ban on direct liability on the shareholders' assets.
Profit transfer agreement
A profit transfer agreement between the parent company and the subsidiary creates joint liability on the part of the parent company for the subsidiary. A profit transfer agreement is a corporate agreement in which the subsidiary, as a controlled company, undertakes to transfer all of its profits to another company, such as the parent company (controlling company). It is often also stipulated that the subsidiary, as a controlled company, subordinates its management to another company, the controlling company (control agreement). Profit transfer agreements allow a tax-privileged transfer of profits from the controlled company to the controlling company. However, according to legal regulations, this transfer of profits is necessarily associated with an obligation on the part of the parent company to assume losses, analogous to Section 302 of the German Stock Corporation Act (AktG). These stock corporation law regulations apply accordingly to other legal entities such as GmbH according to the case law in BGH rulings.
Such losses may in particular be liabilities of the subsidiary from liability cases. Creditors of the company can access this claim under Section 302 AktG analogously through seizure and transfer (Sections 829, 835 ZPO) and satisfy their claims. In addition, the law (section 301 AktG analogously) regulates the maximum amount of profit transfer. The legally mandatory obligation to assume losses through a profit transfer agreement, which would also have to be published in the commercial register and thus make internal information public to creditors, would contradict the goal of leaving liabilities from liability cases with the subsidiary. Regardless of the new structure of the corporate group, no profit transfer agreement should be concluded if the risk of pass-through liability is to be avoided.
Claims of creditors against the parent company
A further exception exists if the parent company has assumed contractual joint liability for liabilities or contractual obligations of the subsidiary towards its creditors, in particular contractual partners. The contractual basis for such joint liability can in particular be a surety, a guarantee, a letter of comfort or a co-signing of the respective contract with the creditor. If pass-through liability is to be avoided, the parent GmbH should not assume any joint liability for the liabilities or obligations of the subsidiary GmbH.
In another constellation, it is conceivable that creditors who have obtained a title against the subsidiary GmbH use this title to access the subsidiary GmbH's claims against the parent GmbH by means of compulsory enforcement. What is particularly important here is loan claims from subsidiaries against the parent company. Loans from the subsidiary to its GmbH shareholders should therefore also be avoided. The managing directors of both companies should always take this risk of indirect liability into account when entering into contracts between affiliated companies. By the way, this applies without restriction to Einmann-GmbH. GmbH law makes no exception for this.
Legal (joint) liability of the partner due to immorality
According to rulings by the Federal Court of Justice, (co-)liability of the GmbH shareholder, regardless of his share in the business, directly towards creditors of the affiliated company can only come into question if the shareholder intentionally and immorally causes damage to the creditors or intentionally and immorally allocates the company's assets to the subsidiary burdens of creditors. This requires a particularly blatant violation of the limits of permitted risk transfer to the subsidiary to the detriment of the creditors.
As a rule, direct liability of the shareholders will have to be examined, especially in the event of an immoral material undercapitalization of the subsidiary and its continuation at the expense of the creditors. “Material undercapitalization” means an insufficient equity capitalization of the company that is clearly recognizable to insiders, which means that a failure to the detriment of the creditors can be expected in the normal course of business with a high probability that significantly exceeds the usual business risk (BGH, judgment of April 28, 2008 - Ref : II ZR 264/06, NJW 2008, 2437 – GAMMA decision).
It is important that direct liability of the GmbH shareholders towards creditors, even in the case of a wholly owned subsidiary, is not possible according to the BGH in the event of mere thin capitalization, as there is no obligation for the shareholder of a GmbH to provide financial resources; This is often overlooked by managers. For a pass-through liability, it is always necessary for the creditors to suffer immoral damage caused by the actions of the shareholders or the managing directors of the parent company, for example if the managing directors of the parent company “speculate at the expense of the creditors” in the case of an insufficiently capitalized GmbH. The typical constellation that should therefore be avoided can arise in particular if the managing directors arrange for a business transaction between a subsidiary that is already insolvent or is close to insolvency with new creditors who are contractually obliged to make an advance payment.
The managing directors of the parent company must therefore recognize that the continuation of business in the subsidiary, despite clearly falling short of the capital resources that are economically necessary in the specific individual case, typically further reduces the company's assets. A pass-through liability towards creditors through their seizure of the subsidiary's claim for damages against the parent company comes into consideration if the managing directors of the parent company order the continuation of the subsidiary GmbH's business activities in violation of proper business conduct, even though it is obvious to everyone that this is actually the case GmbH assets can only be preserved in the interest of creditors by alternatively adding equity capital, ceasing or restricting operations or changing the purpose of the company. Although this constellation has not yet been the subject of higher or highest court case law, it should nevertheless be avoided because it could apply if there is no damage to creditors, but there is damage to the subsidiary.
Existentially devastating intervention
It is also possible, under strict conditions, for the subsidiary to have a claim against the parent company for damages due to “intervention that destroys its existence”, which the subsidiary’s creditors could seize in an emergency. Liability for the destruction of existence according to the corresponding judgments of the BGH, in particular in the Trihotel decision, requires the shareholders to intervene in the company's assets without compensation, leading to insolvency or intensifying this (BGH, judgment of July 16, 2007 - Ref: II ZR 3/04, NJW 2007, 2689 – Trihotel). This creates a claim for damages from the subsidiary GmbH due to intentional damage. This claim is only available to the subsidiary itself and can therefore only be asserted by it or the insolvency administrator. However, creditors of the subsidiary can seize this claim by means of compulsory enforcement if they already have a registered claim against the subsidiary GmbH and the seizure is not excluded due to the opening of insolvency proceedings of the subsidiary GmbH.
The prerequisite for an intervention that destroys the company's existence is that the shareholder has dominant influence, i.e. can largely freely decide on the fate of the subsidiary GmbH, and eliminates the GmbH's ability to fulfill its obligations, in particular through open or covert withdrawals, without any responsibility for these withdrawals there would be a legal basis. In addition, at least conditional intent is required both for the harm to society and for the harm to be immoral. A controlling shareholder must therefore at least accept that the company will suffer a loss of assets as a result of his withdrawal of assets, for which there will be no compensation, and that his behavior will cause or deepen the company's insolvency.
A material undercapitalization of a subsidiary GmbH, i.e. the failure to provide sufficient capital, does not mean such an intervention that destroys its existence. Because insufficient capital resources do not constitute, conceptually or in terms of value, an intervention in the company assets of the subsidiary GmbH, i.e. a “self-service” by the shareholder in front of the creditors. According to the new case law of the Federal Court of Justice, liability due to material undercapitalization is no longer a case of liability of the shareholders towards the subsidiary, but at most a case of direct liability towards creditors due to immoral damage, whereby the immorality must then also be proven.
Mixing of the assets of the group companies
The case of mixing the assets of the parent company and subsidiary, in which there are no longer definable liability pools (“laundry basket accounting”) and invoices are not settled by the company concerned, can also trigger pass-through liability. A managing director and a managing partner must therefore always ensure that the spheres of assets of the respective companies in the group remain clearly separated from each other.
Loan agreements under which the subsidiary grants loans to the company with controlling influence, for example the entire profit, are also risky because this would not mean that the entire profit ultimately remains with the parent company and creditors could seize the subsidiary GmbH's claim for repayment against the parent company. If there are no loan liabilities of the parent GmbH to the subsidiary GmbH, if company assets are not otherwise withdrawn from a subsidiary without compensation and if the subsidiary is equipped with sufficient capital, there is almost no scope for pass-through liability.
From the perspective of the GmbHG, the conclusion of a goods supply contract between companies affiliated with the de facto group should therefore be avoided if the parent company would be included in the supply chain as a seller and would be liable to the subsidiary GmbH in the event of defects or other liability cases arising from its position as a seller. Creditors could also seize this claim.
No liability only if there is actual control
According to the relevant rulings of the Federal Court of Justice, no direct liability arises against a GmbH shareholder who de facto, i.e. without a corresponding control or profit transfer agreement, determines the fate of the subsidiary, for example based on the identity of the management. In its previous judgments, the BGH has denied liability solely because of this factual control, expressly abandoning its original legal opinion.
The conclusion of a profit transfer agreement should not be concluded in the case of targeted retention of profits, as this would create an obligation for the parent company to compensate for losses to the subsidiary, analogous to Section 302 AktG. Creditors of the subsidiary can access the assets of the parent company through this compensation obligation, which would contradict the protection of profits.
In order to achieve the best possible protection of the group's profits against access by creditors, the following requirements should always be met:
It is advisable to conclude one or more contracts between the parent company and the subsidiary, according to which the subsidiary receives services from the parent company and reimburses them. This can in particular be a trademark license agreement or a rental agreement for business premises, vehicles or tools, which should be attached in writing for verification purposes. This can also avoid the impression of a withdrawal of the company's assets without compensation, which could be the basis for direct liability of the parent company. However, it must be taken into account that tax law may have special requirements for the tax recognition of the corresponding payment from such an exchange contract, for example the contract must withstand a third-party comparison. A hidden distribution of profits must also be avoided.
Material undercapitalization of the subsidiary should be avoided at all costs. Under strict conditions, even if the assets of the parent company and subsidiary are mixed or if a company is materially under-capitalized in an immoral manner, liability of the parent company directly to the creditors of the subsidiary or indirectly through the seizure of a corresponding claim for damages by the subsidiary against the parent company in the event of an intervention that destroys its existence can be considered come. The hurdles to the GmbH shareholders accessing the assets of the parent company are very high; In particular, “material undercapitalization” presupposes immorality. This risk can easily be avoided in practice. In this respect, it should also be taken into account that the BGH expressly emphasizes in its recent rulings that mere undercapitalization alone does not constitute liability for the GmbH shareholder, since there is no “financial requirement” for the shareholders' meeting of a GmbH. A subsidiary should therefore always be equipped with capital in accordance with the capital preservation principles; in particular, assets required to cover the share capital must not be returned to the GmbH shareholders.
Accompanying liability protection through contractual liability limitation clauses should also be agreed with the subsidiary's contractual partners. Ideally, the subsidiary will be able to individually negotiate and agree on liability limitations with contractual partners outside of the sales or rental terms and conditions. The prohibition of general terms and conditions law to exclude or limit the amount of liability for fault, even in cases of gross negligence, does not apply to specifically negotiated and agreed liability limitation clauses. If liability is limited or excluded, the risks of creditors accessing the group's assets are also reduced accordingly. Existing liability insurance also protects the assets of a group of companies.
According to the case law of the Federal Court of Justice, the Managing director of a personal liability with their private assets, if the GmbH suffers damage due to an intervention that destroys its existence or the parent GmbH suffers damage due to the establishment of liability for the destruction of its existence.