Liability of the newly appointed managing director for payments made after the company has become insolvent

Anyone taking over the management of a limited liability company (GmbH) must immediately assess its financial position. If there are signs of a crisis, they must immediately assess whether the company is on the verge of insolvency or have this assessed – otherwise, they will be personally liable for unauthorised payments under section 15b of the Insolvency Act (InsO). The Higher Regional Court of Hamm has now clarified the strict requirements placed on the new managing director.

Facts of the case

The claimant is the insolvency administrator of a non-profit GmbH (an inclusive enterprise operating a catering business). The defendant took over the management of the company on 1 April 2020. He had previously worked as a consultant and was aware of ‘long-standing family-related financial issues’ as well as losses caused by the coronavirus pandemic. However, he claims he was not aware of the overall financial situation. The insolvency administrator is demanding that the defendant reimburse payments totalling approximately €117,000, which were made during his tenure as managing director from 1 April 2020 to 16 July 2020. The defendant argues that it was only after an interim balance sheet was submitted on 20 May 2020 that it obtained indications that the company was on the verge of insolvency.

Decision

The Higher Regional Court of Hamm ordered the defendant to pay €81,840.99. There had already been clear signs of a crisis when he took up his post: the 2018 annual accounts in question showed a deficit of around €221,000 that was not covered by equity. The defendant was also aware of ‘legacy issues’, excessive staff costs and the search for a successor to the previous managing director. The entire business had been suspended since 17 March 2020 due to the coronavirus pandemic.

Given these circumstances, the defendant should have assessed, or had assessed, whether the company was on the verge of insolvency immediately upon taking office. In particular, he should have examined the latest annual accounts and, upon discovering a balance sheet deficit, taken immediate steps to prevent further payments that would reduce the estate. The fact that the tax adviser’s advice took place ‘behind the scenes’ and that the results were not available until 20 May 2020 is not sufficient. The managing director must not only commission an audit without delay, but also ensure that it is carried out promptly.

The court grants the defendant a grace period only for the first few days after taking office (1 April to 6 April 2020): Realistically, he could not have set up a separate credit account and redirected third-party debtors before 7 April 2020. He is therefore not responsible for payments received during this first week (totalling €35,481.56).

Practical note

The decision makes it clear that a newly appointed managing director must not rely on information provided by shareholders or predecessors and simply wait. From the very first day of his appointment, he is subject to the full obligations under section 15a of the Insolvency Code (Insolvency Code) (duty to file for insolvency in the event of insolvency or over-indebtedness). If there are indications of a crisis, he must commence his own investigation on the very day he takes office or commission a competent third party – and actively work towards a prompt outcome. It is not sufficient merely to ‘set in motion’ an interim balance sheet; rather, the managing director must, in parallel, personally examine all available documents, in particular the latest annual accounts. The court only allows a short implementation period of around one week to make practical arrangements (such as setting up a current account).

(Hamm Higher Regional Court, judgment of 17 June 2026 – 8 U 3/25)