GMBH FORMATION PRIVILEGE REPEALED: WHAT NEEDS TO BE DONE?

09, April 2024

Since January 2024, the Company Law Amendment Act 2023 (GesRÄG 2023) has been in force, which brings significant amendments for GmbHs. For example, the share capital for GmbHs was reduced from EUR 35,000.00 to EUR 10,000.00. At the same time, the amendment abolished § 10b GmbHG, which standardised the founding privilege. Now the question arises as to what needs to be considered for existing GmbHs with formation privileges.

The ScherbaumSeebacher corporate law team summarises:

1. Principle of continuity: a formation privilege entered in the commercial register before 1 January 2024 can generally be retained. The transitional provision of section 127 para. 30 sentence 1 stipulates that section 10b GmbHG continues to apply to existing companies with formation privileges despite its repeal.
2. No more time lapse: Prior to the GesRÄG 2023, the formation privilege ended ex lege after 10 years. With the repeal of section 10b GmbHG, the automatic termination of the formation privilege due to the passage of time (section 127 para. 30 sentence 1 GmbHG) no longer applies.
3. Nevertheless, there is an indirect obligation to terminate the formation privilege: Due to the principle of continuity, shareholders who have claimed a formation privilege do not necessarily have to take immediate action. However, amendments to the articles of association that do not simultaneously provide for the termination of the formation privilege will no longer be entered in the commercial register from 1 January 2025 (!) (§ 127 para. 30 sentence 2 GmbHG); this indirectly “induces” companies with formation privileges to act.
4. Measure: Amendment to the articles of association through capital reduction: The termination of the formation privilege constitutes a capital reduction measure and requires an amendment to the articles of association. Contrary to § 55 Para. 2 GmbHG, however, a call to creditors prior to the capital reduction is not necessary if the capital contributions taken over are at least equal to the previous capital contributions with formation privileges (§ 127 Para. 30 last sentence GmbHG). This will be the rule.