BAG on the capacity to conduct proceedings for claims under § 303(1) sentence 1 AktG by analogy
The Bundesarbeitsgericht (BAG, Federal Labour Court) ruled on 19 February 2026 – 6 AZR 102/25 – that any claims of creditors of an insolvent dependent company arising from the corresponding application of § 303(1) sentence 1 AktG (German Stock Corporation Act) must, pursuant to § 93 InsO (German Insolvency Code) by analogy, be asserted by the insolvency administrator of that dependent company. Individual creditors are, to that extent, not entitled to conduct the proceedings.
The operative part of the decision states that the claimant’s appeal on points of law was dismissed. In addition, the claimant must bear the costs of the appeal on points of law. The challenged decision was issued by the Landesarbeitsgericht Baden-Württemberg (Baden-Württemberg Higher Labour Court) on 25 February 2025 – 15 Sa 32/24.
Background to the proceedings
Parties and group-law background
The claimant is the statutory provider of insolvency protection for occupational pensions in Germany and Luxembourg. The defendant was the insolvency administrator over the assets of C GmbH. Its subsidiary was S GmbH.
A domination and profit transfer agreement existed between C GmbH as the parent company and S GmbH as the subsidiary. This agreement was entered into on 15 December 2010. S GmbH had promised its employees occupational pension benefits.
Insolvency proceedings over the parent and subsidiary companies
Insolvency proceedings over the assets of S GmbH were opened on 1 July 2013. On the same day, insolvency proceedings were also opened over the assets of C GmbH.
In the insolvency proceedings of S GmbH, the claimant filed claims by letter dated 10 July 2013 arising from § 9(2) sentence 1 BetrAVG (German Occupational Pensions Act) and from liability under § 7(1a) sentence 3 BetrAVG. These concerned pension arrears from occupational pension provision.
The claimant also filed claims in the insolvency proceedings of C GmbH. The filing was made by letter dated 18 July 2013; the claim was later corrected by letter dated 17 October 2017 to EUR 1,602,955.99. As the basis for the claim, the claimant relied on § 303(1) AktG.
Contestation of the claim by the insolvency administrator
The defendant contested the claim. In the insolvency schedule, the contested claim was recorded under number 24. As the reason, it was noted that § 303(1) AktG did not apply due to § 93 InsO.
The claimant then brought an action for determination of the filed claim in the insolvency schedule of C GmbH. The action was brought on 30 June 2022. The Arbeitsgericht (Labour Court) dismissed the action; the appeal before the Landesarbeitsgericht Baden-Württemberg was also unsuccessful.
Decision of the Bundesarbeitsgericht
Appeal on points of law admissible but unfounded
The Bundesarbeitsgericht considered the appeal on points of law admissible, but unfounded. It clarified that the Landesarbeitsgericht was not permitted to dismiss the action on the reasoning it had given. However, in the view of the Bundesarbeitsgericht, the appellate decision proved to be correct in its result.
The appeal on points of law therefore had no success. The claimant was unable to obtain determination of the claim in the insolvency schedule of C GmbH.
Termination of the domination and profit transfer agreement
The domination and profit transfer agreement contained no provision for the event of insolvency of one or both contracting companies. Nor had it been terminated by notice. Nevertheless, the Bundesarbeitsgericht assumed that the agreement ended upon the opening of insolvency proceedings over the assets of the parent company, C GmbH.
The Court based this on the corresponding application of § 115(1) InsO. The Bundesarbeitsgericht provided a more detailed justification for the application by analogy. It therefore had to be examined what consequences the termination of the agreement could have for any creditor claims.
No recognition of a claim under § 303(1) sentence 1 AktG by analogy
The Bundesarbeitsgericht addressed the question of whether the claimant could have a claim under § 303(1) sentence 1 AktG by analogy. The Court did not recognise such a claim in favour of the claimant. It considered the limits of judicial development of the law to have been exceeded.
In rejecting an analogy, the Bundesarbeitsgericht stated, in substance, that not every silence on the part of the legislature may be understood as an unintended regulatory gap capable of being closed by analogy. In doing so, the Senate referred to its case law from the judgment of 25 August 2022 – 6 AZR 441/21.
In the result, however, in the view of the Bundesarbeitsgericht, the question of whether a claim under § 303(1) sentence 1 AktG by analogy exists at all could remain open. This is because the action already failed due to the claimant’s lack of capacity to conduct the proceedings.
§ 93 InsO as the decisive bar to individual actions
Statutory procedural standing of the insolvency administrator
In the insolvency of a partnership with legal capacity or a Kommanditgesellschaft auf Aktien (partnership limited by shares), § 93 InsO provides for statutory procedural standing of the insolvency administrator. Under this provision, the insolvency administrator asserts the personal liability of shareholders or partners for the company’s obligations. This bundling is intended to prevent individual creditors from proceeding separately against personally liable parties, thereby creating a race among creditors.
The Bundesarbeitsgericht applied this concept to any creditor claims arising from a corresponding application of § 303(1) sentence 1 AktG. Accordingly, only the insolvency administrator of the dependent company is authorised to assert such claims in liability proceedings against the controlling company.
Application to the insolvent subsidiary
S GmbH was the dependent company. Any claims of its creditors against C GmbH as the controlling company under § 303(1) sentence 1 AktG by analogy therefore could not be pursued by the claimant itself. According to the decision of the Bundesarbeitsgericht, the capacity to conduct the proceedings lay exclusively with the insolvency administrator of S GmbH.
This also applied to the claimant as the provider of insolvency protection. Precisely because of the corresponding application of § 93 InsO, it lacked the authority to enforce the alleged claim itself in proceedings for determination in the insolvency schedule of C GmbH.
Subsequent distribution and continuing insolvency attachment
Discontinuation of the insolvency proceedings of the subsidiary
The insolvency proceedings over the assets of S GmbH were discontinued on 28 February 2025 due to insufficiency of the insolvency estate. The Bundesarbeitsgericht had to take this discontinuation into account. However, the decisive factor was that the insolvency court had ordered a subsequent distribution.
According to the first official headnote, the order of a subsequent distribution leads to the maintenance of the insolvency attachment. It does not open new insolvency proceedings, but continues the final distribution that has not yet been definitively completed. The corresponding order of the insolvency court was also binding on the Senate.
Continuation of the capacity to conduct proceedings
Due to the ordered subsequent distribution, the insolvency attachment remained in place, among other things, with regard to a quota payment from the proceedings of the parent company. As a result, the insolvency administrator of S GmbH also continued to have the capacity to conduct the proceedings. The discontinuation of the insolvency proceedings due to insufficiency of the estate did not change this.
The Bundesarbeitsgericht therefore relied on the fact that the statutory procedural standing of the insolvency administrator of S GmbH remained effective. The claimant continued to lack the capacity to conduct proceedings with regard to the claims asserted.
Classification of the decision
Significance for creditors of an insolvent dependent company
The decision makes clear that creditors of an insolvent dependent company cannot themselves pursue any claims against a controlling company under § 303(1) sentence 1 AktG by analogy if § 93 InsO applies correspondingly. The claim is then procedurally bundled through the insolvency administrator of the dependent company.
The following points are particularly relevant for the classification:
- § 93 InsO is intended to prevent competing individual enforcement of liability claims.
- Where applied correspondingly, the capacity to conduct proceedings for any claims under § 303(1) sentence 1 AktG by analogy also lies with the insolvency administrator of the dependent company.
- Discontinuation of insolvency proceedings due to insufficiency of the estate does not eliminate the capacity to conduct proceedings if the insolvency attachment continues on the basis of a subsequent distribution.
- Whether a substantive claim under § 303(1) sentence 1 AktG by analogy exists at all ultimately did not have to be decisive for the outcome of the proceedings.
Classification within the discussion on § 303 AktG and § 93 InsO
The Bundesarbeitsgericht consistently places the function of § 93 InsO at the centre of its reasoning. In doing so, the Senate refers to the purpose of bundling enforcement of claims in insolvency proceedings and avoiding uncoordinated recourse against liable parties by individual creditors.
In the reasons for the decision, the Senate expressly addressed views in the legal literature, including comments by Gehrlein/Thüsing on the administrator’s jurisdiction in respect of compensation claims that have not yet been satisfied. The employment-law specialist press reported on the decision on 11 May 2026 under the heading of exclusive capacity of the insolvency administrator to conduct proceedings in the case of group liability under § 303 AktG by analogy.
Frequently asked questions
BAG 6 AZR 102/25: Who may assert claims under § 303(1) sentence 1 AktG by analogy?
According to the decision of the Bundesarbeitsgericht, where § 93 InsO is applied correspondingly, only the insolvency administrator of the dependent company has the capacity to conduct the proceedings. Individual creditors cannot pursue such potential claims themselves in liability proceedings against the controlling company.
§ 93 InsO and § 303 AktG by analogy: Why did the action brought by the provider of insolvency protection fail?
The action failed already due to the claimant’s lack of capacity to conduct the proceedings. The Bundesarbeitsgericht was therefore ultimately able to leave open whether a claim under § 303(1) sentence 1 AktG by analogy exists at all.
BAG on group insolvency: What practical consequences does the decision have for companies and creditors?
The decision concerns the bundling of possible liability claims in the insolvency proceedings of a dependent company. For creditors, it means that any claims under § 303(1) sentence 1 AktG by analogy, where § 93 InsO applies correspondingly, are not pursued individually but by the insolvency administrator of the dependent company.
Insolvency-law classification by MTR Legal Rechtsanwälte
The decision of the Bundesarbeitsgericht shows the significance that the procedural allocation of liability claims can have in group and corporate insolvencies. Particularly in the case of domination and profit transfer agreements, occupational pension provision, and the distinction between individual creditor rights and administrators’ powers, substantial insolvency-law issues can arise.
MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on the legal assessment of insolvency-law and corporate-law matters. Further information can be found under Legal advice in insolvency law.
