Registration of the deletion of a company despite pending legal action

The registration in the commercial register of the deletion of the company is generally precluded if a complaint has been filed against the company. If the deletion is nevertheless incorrectly registered, a supplementary liquidation must be carried out. The company will not be re-registered in the commercial register. This results from a decision of the KG Berlin (22 W 53/22).

Facts

The case decided by KG Berlin concerned the liquidation of a limited liability company ("GmbH"). The shareholders had dissolved the company by resolution. After the expiry of the blocking year, the liquidator filed the termination of the liquidation and the deletion of the company for registration in the commercial register. The registration was made in March 2022, but this was incorrect insofar as at that time there were still legal proceedings pending against the company (action filed in August 2021) for payment of rent. Therefore, the plaintiff requested the re-registration of the deleted company, (i.e. the deletion of the deletion). The Local Court dismissed the application, since the deletion had been made without error in the formal process. The plaintiff has filed an appeal against this decision.

The decision of the KG Berlin as from 27 October 2022 (22 W 53/22)

The appeal was not successful. In the opinion of KG Berlin, the requirements for re-registration of the deleted company were not met. This is because only significant procedural errors justify re-registration. The fact that the GmbH was not completely liquidated in terms of assets due to the pending proceedings does not constitute such an error. In such a case of a deletion despite incorrect liquidation, the necessity of further liquidation measures does not necessarily lead to re-registration of the deleted company. Rather, a supplementary liquidation according to the applicable law is to be ordered.

Practical advice

Each company is always based on the voluntary association of the shareholders. Therefore, the shareholders can also voluntarily stop their association in the company. Such circumstances could be for example a shareholders' resolution to stop the company, the expiry of the duration stipulated in the company´s constitution, the change of the scope of activities, the achievement of the company´s purpose or by the withdrawal of the shareholders.

In such cases of the end of a company the liquidation procedure starts. Through this strict formal regulated procedure, a company is liquidated in terms of assets. That means that the company resp. its manager must sell all assets, settle all liabilities and must distribute the remaining assets (if then still available). This procedure shall ensure that the liquidated company has no assets left at the end of its legal existence. For the sake of clarity for legal relations, the company must use the addition "i. L." at the end of its company name.

It should be noted that the initiation of liquidation proceedings is not the final end of the company. The company ceases to exist only when

• it no longer has any distributable assets, and
• is deleted from the Commercial Register.

In order to avoid that an application for cancellation of the company is rejected and to avoid unpleasant subsequent liquidations, the liquidator (usually the former managing director) and shareholders shall take care of a proper and complete liquidation in terms of assets.

A often problem in practice is the question of whether the company to be liquidated actually has no assets left. This is because as long as the company has assets, the liquidation continues, and the cancellation of the company may be entered in the commercial register. In addition to the question of remaining cash, the relevant participants of the liquidation procedure must also take balances, movable and immovable assets and pending legal proceedings or outstanding tax assessments into account (see for example, OLG Hamm, decision dated May 21, 2021 – 27 W 25/21).

A special case for the end of a company is the termination of a company due to lack of money. In this case, the shareholders have no own option to decide whether to start the liquidation process or not, because there are (normally) no assets left. In such a situation the highly formalized liquidation procedure does not take place. However, a supplementary liquidation must be carried out if distributable residual assets subsequently arise later – in practice, for example, as a result of claims against shareholders and former members of the management (in this regard KG Berlin, decision of 09.11.2021 – 22 W 68/21).