Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/4.1.2
4.1.2 Capital maintenance rules
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS405190:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
§ 3 I No. 3 GmbHG. Instead of a contribution in cash, a shareholder is also allowed to provide a contribution in kind. In the latter situation, additional requirements have to be met (see § 5IV GmbHG).
§ 5 I GmbHG. Before the introduction of the MoMiG, it was discussed and even proposed by the legislator to lower the minimum capital requirement to €10,000. Nonetheless, this proposal was rejected and the already existing minimum capital requirement of €25,000 was maintained.
Some describe the designation as a stigma.
See § 5a GmbHG. This type of GmbH is also known as GmbH light or Mini-GmbH.
§ 5 II GmbHG.
§ 7 II GmbHG.
§ 30 I GmbHG.
§ 19 ff GmbHG.
§ 24 GmbHG.
The share capital (Stammkapital) of the company is the total amount of (forma!) capital contributions of the shareholders to the company. The amount of the share capital must be specified in the articles of association.1 Currently, the GmbHG prescribes a minimum share capital for every GmbH amounting to €25,000.2 Under strict conditions, it is possible to opt for a GmbH with a minimum share capital of at least €1. This type of GmbH carries the designation Unternehmergesellschaft (haftungsbeschränkt) or UG (haftungsbeschränkt), in English: Enterpreneurial company (limited liability) or EC (limited liability).3 With respect to the latter type of GmbH, additional requirements apply with respect to distributions of profits to shareholders.4
The share capital of a GmbH is divided into shares (Geschäftsanteile). Although in the past it was prohibited for a shareholder to hold more than one share, currently, a shareholder is allowed to hold any number of shares. In addition, it is not required that each shareholder contributes an equal stake, although each shareholder is required to contribute at least €1.5 When incorporating the company, each shareholder must contribute to each share at least 25% of its nominal value.6 At the same time, the shareholders are obliged to jointly contribute at least €12,500 of the share capital at incorporation.
The total nominal amount of the share capital forms the capital that must be maintained within the company. The company is not allowed to make distributions to the shareholders if the equity of the company does not exceed its share capital.7 If a shareholder has not fully paid up his shares, he can be held liable for the remainder of the amount to be paid on the shares.8If one of the shareholders is not able to pay up his shares, his shares can be sold in a public auction. If this auctioned sale does not cover the liability attached to the shares concerned, the co-shareholders are held liable for the remainder of the amount payable on the shares (obligo) in proportion to their shareholdings. This proportional (not: joint) liability is known as deficiency liability (Ausfallhaftung).9