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No Change in the Insolvency Ranking Due to the Occurrence of New Estate Insolvency

The decision of the Federal Labour Court of 25 August 2022 concerned the insolvency ranking of claims for default of acceptance of work and the occurrence of new estate insolvency notified by the insolvency administrator during the insolvency proceedings.

Immoral Shareholders Resolution Not Entirely Immune from Challenge

If a shareholders resolution is obtained in an immoral manner and has become final and unchallengeable due to the passage of time, a claim for damages aimed at restoring the situation that existed before the shareholders resolution is not necessarily excluded.

Formation of a Unified Company Only Possible in Two Steps

If a unified company consisting of a limited partnership and a limited liability company (GmbH or entrepreneurial company) is to be formed, in which all limited partnership interests are contributed to a limited liability company, this formation cannot be carried out in a single step.

Allocation Key from the Declaration of Division Is Binding for Condominium Owners Association Resolutions

If the declaration of division also contains rules on the allocation key for advance payments for operating costs, these rules are binding for the condominium owners association. This means that the association may not depart from the rules in the declaration of division by resolutions on financial plans.

Subparticipation in a Limited Partnership Interest Is Subject to Tax as a Co entrepreneurship

The claimant was a GmbH and co limited partnership which was also a family business. Individual family members who were not themselves limited partners in the family business were involved through subparticipations in the limited partnership interests. This was made possible by special provisions in the partnership agreement. One of the limited partners sold his entire limited partnership interest to a third party, which also gave rise to a capital gain at the level of the claimant.

Discharge of the Managing Director Only if Adequate Accounting of Personal Management Activities Is Provided

The judgment of the higher regional court of Brandenburg concerned the discharge of a managing director of a GmbH. The former managing director and co shareholder (the defendant) had been removed from office as managing director for cause by shareholders resolution and his shares had been redeemed. It was further resolved that the company should pursue its claims against the defendant.

No Penalty Payable by the Owner of an English Limited Company for Filing the Dissolution of the Secondary Establishment

The judgment of the higher regional court of Celle concerned an English Limited company with its registered office under its articles and registration in the Companies House in the United Kingdom, which had transferred its administrative seat to Germany. Its branch office had been registered in the German commercial register since April 2009.

Duty to File for Insolvency in the Absence of Management of an English Limited Company

Section 15a paragraph 3 of the Insolvency Code does not apply to an English Limited but only to a GmbH governed by German law.

Credit Reference Agency Must Delete Data of an Insolvency Debtor

Credit reference agencies must not process the data of an insolvency debtor for longer than the information may be published in the official insolvency announcements portal.

Dissolution of a GmbH Due to Opening of Insolvency Proceedings Does Not Automatically Trigger a Loss Realisation

In the case at hand, at the beginning of 2014 the claimant acquired shares in the GmbH concerned in the nominal amount of one euro and granted the GmbH a loan of 320,000 euros in order to avert insolvency. As security, the GmbH transferred to the claimant a spare parts warehouse with a value of 40,000 euros and vehicles with a value of 38,000 euros.