Following the entry into force of the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (MoMiG), an atypical silent shareholder must still be treated as a subordinate insolvency creditor for the purposes of section 39(1) no. 5 of the Insolvency Act (InsO) in the event that the company becomes insolvent, assuming the status of the silent shareholder is similar to that of a shareholder in a GmbH (private limited company). In a judgment dated 27 October 2011 (Cologne HRC, judgment of 27.10.2011 – 18 U 34 / 11), the Cologne Higher Regional Court demonstrated its adherence to the case law relating to the old version of sections 30 et seq. of the German Limited Liability Companies Act (GmbHG). According to this case law, a silent shareholder must be treated in the same way as a GmbH shareholder in relation to the regulations on maintenance of capital if his legal status largely corresponds to that of a GmbH shareholder in terms of his economic stake as well as his influence on the fortunes of the GmbH. In the case before it, the Court considered these conditions met: according to the Court, an economic stake comparable to that of a shareholder was established by virtue of the claimant’s share in the profits, the assets and the disclosed and undisclosed reserves of the company as provided for in the silent shareholder agreement, and by virtue of the fact that the settlement balance was dependent on the goodwill of the company. Furthermore, the participation agreement contained a veto right for the claimant for decisions of considerable importance, in particular the acquisition of or investment in other companies or the setting-up of subsidiaries. In the Court’s opinion these facts, along with the claimant’s additional rights of control deriving from the company’s obligation in the participation agreement to establish an advisory board in the event of a significant deterioration in its economic development and the claimant’s entitlement to nominate a representative to the advisory board, gave the claimant the ability to influence the company’s fortunes just like a regular GmbH shareholder.