Internal liability due to proportionate under-capitalization
The facts and legal consequences of the undercapitalization of corporations were not clarified in German company law for a long time. The theory of internal liability according to § 826 BGB because of proportional undercapitalization aims to remedy this deficiency.
background
The problem of undercapitalization is based on a conflict of interests between shareholders and corporate creditors. The German company law traditionally tried to solve the problem through the capital protection system, which GmbH shareholders u. a. imposed the raising and maintenance of a minimum capital. There is no such system, especially in the Anglo-American legal community. Accordingly, the German concept came under pressure after the ECJ v. a. in the Überseering judgment, the arrival of the phenotypically undercapitalized English limited company, founded using a pound sterling , under the protection of the freedom of establishment according to Artt. 43, 48 EC to Germany. With the law to modernize GmbH law and to combat abuses and the law to implement the shareholder rights directive, the German legislature adapted the local legal situation to the changed circumstances and liberalized the capital protection system. In the case of the GmbH, deregulation went particularly far. This made the problem of undercapitalization for German GmbHs even more acute.
Fact of proportionate undercapitalization
According to the Trihotel doctrine of the Federal Court of Justice , what matters is a damaging breach of duties incumbent on the shareholders towards their company. In analogy to the Trihotel doctrine, which concerns the existence destruction liability , the concept of internal liability due to proportional undercapitalization sees undercapitalization as such a breach of duty.
When undercapitalization occurs depends on a variety of factors. The balance sheet is of the greatest importance . At least 16% of the balance sheet total must come from shareholders (equity or debt). If this value is not reached, then undercapitalization is ruled out only if an individual consideration of cash flow , debt repayment period, book value , risk provisions, earning power, etc. shows that the business model is healthy. If this is not the case, the shareholders are liable if their entrepreneurial decision on the capitalization of their company is not protected by the Business Judgment Rule .
Ultimately, it is no longer about a fixed minimum capital , but about a minimum risk that shareholders should bear so that they do not abuse their position at the expense of the creditors .
Legal consequences of the proportional undercapitalization
Again in analogy to the Trihotel doctrine of the BGH, liability for proportional undercapitalization leads to internal liability of the shareholders towards their company: They have to pay the company the amount that is necessary to eliminate the proportional undercapitalization by way of compensation. H. Add capital until at least 16% of the balance sheet total comes from you. In order to take into account the freedom of financing under the MoMiG , it is up to the shareholders whether they want to add equity or debt. Alternatively, they can liquidate the company in an orderly manner. If they fail to do so and lead an undercapitalized company into insolvency , they are liable under the aspect of existential destruction liability.
European law conformity
German corporation law can no longer be designed without considering the freedom of establishment. There is no point in introducing regulatory concepts that can be circumvented by choosing a foreign company form while protecting the freedom of establishment. However, shareholders cannot escape internal liability due to proportionate undercapitalization, because it has to be classified under tort law, so that German law also applies to foreign companies with a focus on Germany. This is also not in conflict with the freedom of establishment.
According to the four conditions test of the ECJ, it is important that the national measure is applied in a non-discriminatory manner, serves an overriding reason of the general interest and is suitable and necessary to achieve it. These prerequisites are met because creditor protection is a valuable asset, the liability figure is applied equally to domestic and foreign companies and there is also enough room for judgmental consideration in individual cases. The information model propagated by the ECJ fails, according to which restrictions on the freedom of establishment are not necessary due to the possibility of self-protection of the company's creditors , because according to the concept of internal liability due to proportional undercapitalization, the company itself is the directly injured party and not its creditors.
literature
- Gerold Niggemann: The reform of the creditor protection system of the GmbH in the mirror of the freedom of establishment Duncker & Humblot, Berlin 2010, ISBN 978-3-428-13112-9 .