4.2.6 Procedure

A shareholder holding at least 10% of the share capital of the company is entitled to start winding-up proceedings. Two or more shareholders who jointly hold at least 10% of the shares are also entitled staring proceedings. While statute merely refers to the percentage of the share capital, it is not relevant how the voting rights are divided between the shareholders. In order to start proceedings, the shareholder does not need the prior approval of a pledgee or usufructuary.1

The requirement of providing at least 10% of the share capital applies during the whole proceedings, from the start up until the end.2 The action has to be brought against the company. Co-shareholders who wish to resist the winding-up of the company can join the side of the company in the proceedings as a third party intervening in support of the company (Streithelfer).3

Proceedings pursuant § 61 GmbHG must be started at the District Court (Landgericht). Appeal can be brought before the Court of Appeal. Following the consent of the Court of Appeal, the case can be put into revision before the Supreme Court.

When the final judgment containing the order for winding-up becomes irrevocable, the winding-up of the company enters into effect.4 As a consequence, the company is put into liquidation.5 The order for winding-up cannot be declared provisionally enforceable, but the court can take measures to secure the claim for the liquidation surplus.6