Sep 10, 2019 | Uncategorized
Repayment of a shareholder loan can potentially be contested by the insolvency administrator even if the amount circuitously ends up in the company”s account again.
Payments made in the face of looming insolvency may be contested by the insolvency administrator on the basis that the payment places other creditors at a disadvantage. We at the commercial law firm MTR Rechtsanwälte https://www.mtrlegal.com/en note that even if the money ends up with the company again via third parties, this does not automatically resolve the issue of creditor fraud, as is clear from a recent ruling of the Bundesgerichtshof (BGH), Germany”s Federal Supreme Court.
In a ruling from May 2, 2019, the BGH held that creditor fraud resulting from the repayment of a shareholder loan is not resolved just because the amount ultimately returns to the company (Az.: IX ZR 67/18).
In the case in question, the defendant was the managing director of a GmbH that had since become insolvent. He was also the sole limited partner of the GmbH”s parent company. He loaned the GmbH 100,000 euros, which the company repaid shortly thereafter. The managing director used the money to pay his limited partner capital contribution in the amount of 100,000 euros to the parent company. The latter then promptly effected a loss compensation payment for the benefit of the GmbH.
Although the 100,000 euros had ended up in the GmbH”s account again, the insolvency administrator nevertheless demanded that the amount be repaid by the managing director. While the claim was dismissed by the courts of lower instance, it was ultimately successful before the BGH.
The BGH ruled that the prerequisites for contesting the debtor”s actions in insolvency proceedings were present, since the repayment of the shareholder loan placed other creditors of the GmbH at a disadvantage. The Court noted that while this can, in theory, be subsequently resolved, that did not happen here, even though the amount ended up back in the hands of the GmbH.
According to the BGH, resolving this form of creditor fraud requires the company to return the appropriated asset and that the creditors may have access to it. In the instant case, however, the sum was used by the managing director to discharge his obligation to the parent company and by the latter, in turn, to discharge its obligation in the form of liability for covering losses vis-à-vis the subsidiary GmbH. The Court therefore concluded that repayment of the original shareholder loan had not been effected.
When faced with looming insolvency, it is necessary to make prudent financial plans in order to navigate the company back to safe waters. Lawyers experienced in the field of company law can serve as expert advisors.
https://www.mtrlegal.com/en/legal-advice/company-law.html
Sep 9, 2019 | Uncategorized
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Sep 9, 2019 | Uncategorized
Who’s Next, the leading international fashion trade show for women’s wear in Europe that takes place twice a year, over 4 days, is all set to welcome around 50,000 visitors through its doors at the Porte de Versailles Exhibition Centre in Paris, with 1,500 French and international brands to see.
All set to be held from 6 – 9 September, 2019 (Friday – Monday), Who’s Next is more than just a trade show, Who’s Next is an unmissable source of inspiration for market trends, with its offer of ready-to-wear, accessories, beauty and lifestyle, as well as a complete programme of conferences and workshops.
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Sep 9, 2019 | Uncategorized
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Sep 9, 2019 | Uncategorized
If a GmbH commits a trademark infringement, its sole managing director may be held personally liable. That was the verdict of the Landgericht (LG) München, the Regional Court of Munich, in a ruling from July 9, 2019 (Az.: 33 O 11904/18).
Managing directors of a GmbH face a substantial risk of personal liability. We at the commercial law firm MTR Rechtsanwälte www.mtrlegal.com/en (https://www.mtrlegal.com/en) note that if they fail to meet their obligations, they may be liable to pay damages to not only the company but also third parties. A recent ruling by the Landgericht München demonstrates this. The Court concluded that the managing director may be held liable for a trademark infringement on the part of the GmbH.
In the instant case, a corporate group brought legal actions against the GmbH and its managing director, including claims for injunctive relief, damages, cancellation, and reimbursement. The group owns several trademarks defined by the letter “M”. The GmbH, for its part, was the proprietor of two M trademarks. The group initially filed applications with Germany”s Federal Patent and Trademark Office, the DPMA, for both of these trademarks to be revoked, issued the company and its managing director with a formal warning, and finally sued, arguing that its M logo possesses an average distinctive character.
The claim was premised on consumers potentially confusing the marks or assuming a business connection due to its prominence, with the Group concluding that this gave rise to a breach of competition law.
The claim was largely successful. The LG München held that, average distinctive character notwithstanding, there was a risk of confusion between the two signs. Moreover, the managing director of the GmbH was found personally liable for the trademark infringement.
The Court went on to state that for the managing director to be held personally accountable as an offender or accomplice, it is necessary for them in their capacity as legal representative either to have been involved in the trademark infringement through positive action on their part or they ought to have prevented it from happening because of their status as guarantor. Accountability as an offender or accomplice may also be assumed if the actions in question that were taken by the company are normally decided at the management level. The LG München ruled that it can then be assumed that the relevant action was instigated by the legal representative.
Lawyers experienced in the field of company law can advise companies and managing directors.
https://www.mtrlegal.com/en/legal-advice/company-law.html
Sep 9, 2019 | Uncategorized
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