Under the new liability standard set out in section 64 sentence 3 of the GmbHG, which was introduced by the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (MoMiG), the managing director of a company is liable for payments to shareholders which necessarily cause the insolvency of the company. The requirement for causality of the payment for insolvency and actual determination of insolvency were matters of dispute. The Federal Court of Justice (BGH) has now established clarity on both points (judgment of 9 October 2012 II ZR 298 / 11).
According to the court, the concept of insolvency as per section 64 sentence 3 of the GmbHG corresponds with that in section 64 sentence 1 of the GmbHG and section 17 (2) sentence 1 of the Insolvency Act (InsO). Under these provisions, insolvency can generally be assumed where there is a liquidity gap of 10% or more which will not be eradicated within three weeks and where it cannot be expected with near certainty that the liquidity gap will be closed completely or almost completely in the near future and the creditors cannot reasonably be expected to wait any longer under the specific circumstances. Contrary to one opinion put forward in the literature, due shareholder claims should not be disregarded when determining insolvency, according to the court.
As such, if a company is already insolvent, payment of a due shareholder claim could not give rise to insolvency. The legislator had merely seen the rule as supplementing the liability of shareholders in situations where their acts cause the destruction of the company. Payment of a shareholder claim thus only meets the requirements in very exceptional cases, e.g. where it does not in itself lead to insolvency, but where creditors who are not shareholders have made the continuation, extension or granting of their loans dependent upon non-payment and they use settlement of the claim as an opportunity to terminate their loans.