In certain cases, payments by a GmbH to its shareholders are inadmissible due to the violation of the capital conservation round-rate. As a legal consequence of an inadmissible payment, the respective recipient of the service is in principle obliged to reimburse the same. The following article informs GmbH shareholders and Managing Directors about the basics of the corporate reimbursement obligation of § 31 GmbHG.

1.1. Basis of reimbursement obligation: The prohibition of payment according to § 30 para. 1 p. 1, par. 2 GmbHG

As a safeguard of the principle of capital conservation under GmbH law, the law standardizes a fundamental prohibition on payment to shareholders as soon as the company assets already before the payment or by the payment fall below the amount of the statutory share capital. To a lesser extent, the non-payment ban also relates to repayments of shareholders’ margins which are not necessary to cover the share capital. Exceptions to the payment prohibition are generally given if the performance of the GmbH is covered by a full-fledged claim for restitution or consideration or was made in the context of a profit transfer agreement.

1.2. Entitlement to the refund

If the payment of the GmbH violates a payment ban within the meaning of § 30 para. 1 p. 1, par. 2 GmbHG arises as a legal consequence of the company-law reimbursement claim according to § 31 para. 1 GmbHG. The claim of the GmbH includes the complete reimbursement of the inadmissible service. If the inadmissible payment consisted not in a cash benefit, but in a non-cash benefit, the received item is primarily to be granted back. If this is not possible, the liability relates secondary to the refund of the value substitute. The claim for reimbursement is due immediately after granting the inadmissible service and can be asserted by the GmbH without a shareholder resolution. The confiscation is carried out by the managing director as organic representative of the GmbH. Creditors of the GmbH, however, are not entitled to reimbursement.

In the vast majority of cases, the shareholder who has received the inadmissible payment is obliged to refund the payment to the GmbH. However, insofar as the disbursement prohibition of § 30 GmbHG declares disbursements of the GmbH to third parties (= non-partners) inadmissible, they may also be obliged to reimburse the payment in individual cases. This affects in particular indirect shareholders (e.g. trustees) and usufruct holders. In some cases, assignees and close relatives of a shareholder are also eligible as opponents for reimbursement.

2. restriction in good faith (§ 31 para.) 2 GmbHG

If, however, the recipient of the inadmissible payment of the GmbH had no knowledge or grossly negligent ignorance of the violation of the payment prohibition at the time of receipt, he would not be liable in principle for the refund of the payment. In this context, the lack of knowledge has to refer in particular to the specific asset situation (keyword: sub-balance sheet) of the paying GmbH. In the exceptional situation where a third party is liable for reimbursement, it must be examined in each individual case whether the requirement of good faith relates to the shareholder or the third party.

Exceptionally, however, a bona fide recipient of the inadmissible payment is also liable for the refund of the service. According to the legal concept, this is the case if and to the extent that the amount to be reimbursed is required by the GmbH to satisfy its creditors. In this respect, the good faith of the recipient plays no role, the refund obligation exists independently of this. The necessity of the amount for creditor satisfaction does not only exist for the GmbH in the event of insolvency-relevant insolvency or over-indebtedness. In this regard, temporary liquidity shortages are already sufficient, due to which the GmbH cannot meet the claims of its creditors. A pure underbalance sheet in the sense of § 30 Abs. 1 GmbHG cannot, of course, suffice, since the exception of good faith would otherwise be completely undermined.

If the recovery of the amount to be reimbursed by the shareholder subject to reimbursement is hopeless for the GmbH (e.g. in particular in the event of unsuccessful foreclosure or opening of insolvency proceedings concerning the assets of the shareholder), the GmbH may adhere to the other shareholders. The requirement is part of the capital conservation principle under company law. For this reason, the good faith of the other shareholders is not relevant for Ausfallhaftung.

The co-shareholders are thus personally liable to the GmbH for the cancellation of the refund claim against the recipient. The liability is proportional to the shareholdings of the other shareholders and is limited exclusively to cash benefits. The limit of liability for Ausfallhaftung is the share capital of the GmbH as agreed by the statutory provisions. Beyond this value, the co-shareholders are not liable for the default of the refund claim.

3.2. Managing Director liability towards the co-shareholders (§ 31 Abs. 6 GmbHG)

If the joint shareholders assume liability for default, they can in turn recourse to the GmbH Managing Directors. However, this only applies insofar as the managing director is at fault with regard to the inadmissible payment. In this context, it should be noted that the managing directors are not automatically discharged if they were instructed to make the payment on the basis of a shareholder resolution. In individual cases, however, the existence of such a shareholder resolution may constitute an objection to the use in favour of the directors.

4. The prohibition of remission (§ 31 para 4 GmbHG)

In order to safeguard the principle of capital conservation, the statutory regulation provides that neither the reimbursement claim against the recipient nor the liability of the co-shareholders can be waived by the GmbH. Accordingly, the GmbH may not voluntarily waive the claims. Similarly, although not expressly regulated by law, the regulation concerns the offsetting by an affected shareholder with a claim he is entitled to against the GmbH. Likewise, the deferral of the corresponding claims is inadmissible. If such agreements are nevertheless agreed between GmbH and shareholders, these are null and void. In addition, the statutory decree prohibition cannot be excluded by the articles of association, since it is a mandatory law.

Reimbursement obligation: limitation of claims (§ 31 para.) 5 GmbHG

The right of the GmbH to reimbursement of the inadmissible payment against the recipient expires in ten years. Meanwhile, the limitation period for the GmbH’s claim due to the joint shareholders’ liability for Ausfall is only five years. In both cases, the limitation period shall begin on the expiry of the day of the inadmissible payment. However, the period shall be suspended in each case if insolvency proceedings are opened on the assets of the GmbH (cf. § 19 para 6 S.2 GmbHG).

The right to recourse of the co-shareholders against the GmbH Managing Directors on the basis of Ausfallhaftung also lapses in five years (§ 31 para 6 p. 2 in accordance with § 43 para 4 GmbHG).