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On the registration of liquidators after deletion without liquidation

If, after the deletion of a limited liability company ("GmbH") without liquidation, it emerges that the company still has assets, the deleted limited liability company and its liquidators must be entered in the commercial register ex officio. This was recently decided by the Federal Court of Justice (Bundesgerichtshof, "BGH").


The decision of the BGH was based on the appeal of a liquidator. A GmbH was officially deleted from the commercial register in 2006 due to its lack of assets. In 2019, it turned out that the company still had residual assets.

In order to be able to prove his power of representation, the liquidator applied for the registration of the company and himself as liquidator with power of representation in the commercial register.

The Berlin-Charlottenburg Local Court and the Berlin Appellate Court rejected the application for registration. The liquidator continued to pursue his request for registration with an appeal on points of law to the BGH.

The decision of the BGH of July 26, 2022 (Case No. II ZB 20/21)

The appeal on points of law was successful. The BGH overturned the decisions of the lower courts and ordered the registration by the registry court. It clarified that the registration of the company and its liquidators must in principle be carried out ex officio if, after the GmbH has been deleted due to inequity, it turns out that it still has assets. This could also not be omitted with the argument that the liquidator could prove his power of representation by other means - for example by presenting his appointment resolution (Berlin Appellate Court, decision of 09.11.2021, file no. 22 W 68/21).

Practice note

The liquidation of the assets of a GmbH is carried out in so-called liquidation procedure.

This does not necessarily mean that the company has failed. Rather, liquidation is a natural and orderly process for terminating the company. The reasons for this can be manifold; they range from a change in the field of activity, to the sheer passage of time of the joint project, to the dissolution of the company because the shareholders wish to retire.

The liquidation procedure is highly formalized. After the dissolution of the company, the "real" liquidation takes place. In this process, the existing assets of the company are converted into cash and the debts of the company are thus repaid. Any surplus resulting from this is distributed to the shareholders. The aim is the so-called "full termination" of the company, which does not occur until the liquidation has been completed after the expiry of a blocking year. Only then the company is deleted from the Commercial Register.

Special circumstances apply in the event of the opening of insolvency proceedings or the deletion of the company due to a lack of assets - in both cases, no classic liquidation procedure takes place. In the case of opening of insolvency proceedings, liquidation proceedings are no longer permissible because liquidation in insolvency proceedings has priority. In the event of cancellation due to lack of assets, liquidation proceedings are no longer required because there are no longer any assets to be liquidated.

As in the case decided by the BGH, however, it may turn out after cancellation due to inequity that the company still has (realizable) assets. Frequent cases in practice include claims against shareholders, liability claims against former board members or - as in the case of the BGH - unrecognized real estate. In these cases, liquidation proceedings must be conducted retrospectively. In addition - as the BGH clarified - the company and the liquidators must be entered ex officio in the commercial register.

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