A change of shareholder can lead to a proportional or complete elimination of the existing losses of a company. However, this shall not apply if the acquisition of the investment is made with the aim of restructuring the company. Up to now, however, the EU Commission has regarded this so-called restructuring clause as state aid. The European Court of Justice [ECJ] has recently declared this state aid decision null and void. Therefore, the restructuring clause can be applied again.

According to consistent case-law of the Federal Court of Justice [Bundesgerichtshof – BGH], shareholders can assert certain claims against a fellow partner as litigants in the way of “actio pro socio”. Up to now, it had been a matter of dispute whether or not the limited partner of a GmbH & Co KG is also granted the right to assert claims of a limited partnership against a third-party managing director of the GmbH & Co KG’s general partner. In its decision II ZR 255/16 dated 19.12.2017, the BGH denied this right.

The years of criticism of the case law of the 7th Senate of the Federal Labor Court [Bundesarbeitsgericht – BAG] by the Regional Labor Courts and the literature have shown their effect: On 6 June 2018, the Federal Constitutional Court [Bundesverfassungsgericht – BVerfG] overruled the BAG’s previous case law on the prohibition of pre-employment in the case of unfounded time limits, leaving legal uncertainty behind. The three-year limit developed and applied by the BAG contradicts the Constitution, according to the BVerfG.

If a limited liability company is transformed into a company constituted under Civil Law, the question arises, whether it is required to enter the GbR and its shareholders into the commercial register. In practice, such entries have continuously been made, however, the Federal Court of Justice has now negated the necessity of entry. In the same case, it also had to decide on the liability consequences arising from a possibly incorrect entry that had been made.

The Federal Court of Justice has ruled that when determining insolvency, the liabilities (Liabilities II) that fall due within the three-week period after the reporting date must also be taken into account. Furthermore, the decision specifies the considerable evidence and presentation requirements for managing directors of a limited liability company who is being claimed by the insolvency administrator because of the initiation of payments after insolvency maturity.