## Facts

- A limited liability company (A‑GmbH) operated a hotel in Rostock leased from its controlling shareholder and managing director (defendant), who held 52% of shares; his wife held 48% and granted him broad authority.
- The defendant structured control through related family entities, including transferring his A‑GmbH shares to another company (J‑GmbH) for which he served as sole managing director.
- A‑GmbH’s key operating assets became increasingly encumbered, including insider-secured financing backed by security ownership transfers over operational property (e.g., hotel furnishings).
- A‑GmbH entered insolvency proceedings in May 2000.
- A special insolvency administrator sued the defendant personally, alleging uncompensated, abusive interference with assets functionally reserved for satisfying company creditors, causing or deepening insolvency and seeking recovery measured by admitted creditor claims.

## Issues

1. Whether controlling shareholders can be liable for “existence-destroying interference” in a GmbH’s assets when conduct causes or deepens insolvency.
2. Whether that liability is an autonomous, direct (external) veil-piercing claim in favor of creditors or an internal damages claim owed to the company.
3. How such liability relates to statutory capital maintenance remedies under GmbH law, including whether it is subsidiary to those remedies or concurrent.

## Decision

- The high court set aside the appellate judgment imposing personal, external liability on the defendant and remanded for further proceedings.
- The court reaffirmed the need for liability for abusive, uncompensated asset withdrawals that lead to or deepen insolvency, but rejected the prior framing as an autonomous veil-piercing doctrine.
- The court reclassified the doctrine as an internal damages claim owed to the company, grounded exclusively in the general tort provision for intentional, immoral injury (§ 826 BGB).
- The court held that § 826 BGB “existence-destruction” claims are not subordinate to statutory capital maintenance repayment claims; overlapping remedies may exist concurrently.
- The appellate court was directed to reassess liability and damages under the elements and remedial logic of § 826 BGB rather than under a direct creditor-facing theory.

## Legal Principles

- A controlling shareholder may incur liability when, through abusive and uncompensated interference with company assets functionally committed to creditor satisfaction, the shareholder intentionally and immorally causes or deepens the company’s insolvency.
- This liability is an internal tort-based damages claim owed to the company (and enforceable by an insolvency administrator), not a direct, general veil-piercing claim held by individual creditors.
- The doctrinal basis is § 826 BGB (intentional, immoral damage), treated as a specific application to existence-destroying conduct against the company.
- Statutory capital maintenance remedies and § 826 BGB existence-destruction claims may overlap without a rule of subsidiarity; where elements are met, claims may proceed on concurrent legal bases.
- Damages focus on harm to the company’s estate (the diminution of assets available for creditor satisfaction), requiring proof of intentionality and immorality under § 826 BGB.

## Conclusion

The court preserved liability for existence-destroying shareholder conduct but recast it as a company-held, § 826 BGB tort claim rather than creditor-directed veil-piercing, allowed concurrency with capital maintenance remedies, and remanded for renewed fact-finding and damages analysis under the revised framework.


Trihotel (BGH), II ZR 3/04 (July 16, 2007)