Submission of a habilitation assurance upon appointment as liquidator

Every liquidator has to submit a so-called habilitation assurance to the commercial register. This also applies if such a declaration was already made when he or she was appointed as managing director. This was decided by the Berlin Appellate Court.

Facts

The case before the Berlin Appellate Court concerned the entry a liquidator in the commercial register.

After the limited liability company ("GmbH") was dissolved, the previous managing director was appointed as liquidator. The registration of this event to the commercial register did not contain a habilitation assurance, i.e. the assurance of being suitable for the position as managing director. In addition, the notarial certification of the commercial register application was written in Turkish. The registry court objected to this and refused the entry. The certifying notary filed an appeal against the decision.

The decision of the Appellate Court of July 1, 2022 - 22 W 31/22

The appeal was unsuccessful on the merits. The liquidator was obliged to submit a habilitation assurance by operation of law. This also applies if the previous managing director is appointed liquidator of the company and had already given a habilitation assurance when he was appointed managing director. The court reasoned, among other things, that the liquidator did not continue the old position but took up a new one.

According to the Court of Appeal, the notarial certification also did not comply with the statutory requirements. Whether the notary had carried out the required identity check when the liquidator signed the commercial register application could only be verified by the registry court if the certification note was in any case also written in German.

Practical advice

The liquidation of the assets of a GmbH is carried out in the so-called liquidation procedure. The liquidation is carried out by the previous managing directors of the company as so-called "born liquidators" in accordance with the law. By the articles of association or by a shareholders' resolution, the liquidation may also be assigned to other persons (so-called "appointed liquidators"). A liquidator may also be appointed by the court in special cases, for example to ensure the company's ability to act. The task of the liquidator is to terminate the current business of the company, fulfill outstanding obligations, collect receivables and convert the assets of the company into cash.

The liquidators of a GmbH must be registered in the commercial register. The commercial register application required for this purpose must be certified by a public notary. The certification can be carried out by a German notary or a foreign notary; however, if foreign notaries are involved, additional proof of authenticity (e.g. an apostille or legalization) may be required in addition to the certification. In certain cases, especially if the court lacks language skills, a court order may additionally require the submission of a translation.

When filing for registration in the commercial register, the liquidator must provide the commercial register with a so-called assurance of his capacity to act. Among other things, he or she must declare that he or she is not subject to a ban on practicing his or her profession and that he or she has not been convicted of certain criminal offenses (e.g., fraud or fraud in bankruptcy). This also applies - as the Court of Appeal decided - if such a declaration was already made when he was appointed managing director. False declarations of incapacity are punishable, which the notary usually also instructs about when certifying the application for entry in the commercial register. The commercial register application is therefore not a formality, but an important step on the way to the registration of liquidators. Every liquidator should therefore carefully check what he is actually signing and, if necessary, ask his notary or lawyer.