Liability of the shareholders

This situation may come about in circumstances such as the following:

Commingling of assets occurs when records have been kept deficiently or not at all, and it is unclear which assets belong to the shareholders and which to the GmbH. In situations such as this, a lone shareholder or the shareholder with the controlling interest is usually the only one to be affected by the ‘piercing of the corporate veil’. In the case of minority shareholdings, it is not normally possible under corporate law to commingle different spheres of assets.

Improper interference with corporate assets ring-fenced to give priority to the claims of company creditors, which results in the company’s insolvency or has a detrimental effect on its solvency without a compensating counter-effect, will result in the shareholders concerned being held fully liable (so-called ‘liability for destroying the economic basis of a company’; cf. the Federal Court of Justice ruling on 16/7/2007, Ref. II ZR 03/04). According to this ruling, the shareholders are liable to the company and not to the company’s creditors. The court clarified that such interference should be regarded as intentional damage contra bonos mores pursuant to Art. 826 BGB, which means that harmful interference presupposes contingent intent. This could be demonstrated if the shareholder acting in this way was aware that measures taken by him personally or with his consent were detrimental to the assets of the company. That these measures were contra bonos mores did not require there to be any malicious intent; a knowledge of the underlying facts would suffice. This unlimited internal liability exists independently of any claim by the company pursuant to Arts. 30, 31 GmbHG against the shareholder inflicting the damage. The insolvency administrator asserts the claim in the course of the insolvency proceedings.