No Right of Withdrawal for Shareholder Guarantors
In its order of 28 April 2026 – XI ZR 49/25, the BGH held that a shareholder guarantor cannot invoke a right of withdrawal under Article 9(1) of Directive 2011/83/EU in conjunction with § 312g BGB (German Civil Code) where a guarantee agreement was concluded at a distance or off-premises. At the same time, the Bundesgerichtshof saw no reason to refer the matter to the Court of Justice of the European Union pursuant to Article 267(3) TFEU (Treaty on the Functioning of the European Union).
Guarantee for a Revolving Credit Facility
Liability Up to an Agreed Maximum Amount
The claimant sought payment from the defendant under a directly enforceable guarantee. The defendant had assumed liability for all claims held by the claimant against a GmbH (German limited liability company) arising from a revolving credit facility of EUR 5.7 million granted in April 2020. The guarantee was limited to a maximum amount of EUR 1.425 million.
The company could draw on the credit facility both as an overdraft facility and as a guarantee facility. In addition, the parties agreed on a five-year limitation period for claims under the guarantee.
Enforcement Following the Commencement of Insolvency Proceedings
After preliminary insolvency proceedings had been ordered in respect of the company’s assets, the claimant terminated the credit relationship in October 2022. In November 2022, it called on the defendant under the guarantee.
In the subsequent insolvency proceedings, the claimant lodged claims arising from the overdraft facility amounting to approximately EUR 5.74 million for inclusion in the insolvency schedule. These claims were admitted in full in respect of any shortfall. The outstanding balance was therefore sufficiently established.
Dispute Concerning the Scope and Validity of the Guarantee
The Claimant’s Position
In the claimant’s view, the guarantee was valid. It based its claim in particular on the following considerations:
- The agreed security purpose was sufficiently specific and was limited to claims arising from the expressly identified revolving credit facility.
- Even if the security purpose clause failed the review applicable to standard terms and conditions, the defendant would nevertheless be liable for claims arising from this credit facility under the case law governing guarantees given in connection with a specific transaction.
- The agreed five-year limitation period did not affect the validity of the guarantee.
- Even if the limitation clause were invalid, liability under the guarantee would remain in effect pursuant to § 306(2) BGB.
- According to the case law of the Bundesgerichtshof, there was no right of withdrawal under §§ 312b et seq. BGB.
The Landgericht (Regional Court) upheld the claim. The Oberlandesgericht (Higher Regional Court) dismissed the defendant’s appeal.
Complaint Against Denial of Leave to Appeal Unsuccessful
No Point of Law Requiring Clarification on Appeal
The defendant’s complaint against the denial of leave to appeal on points of law was unsuccessful. In the BGH’s view, the case was neither of fundamental importance nor was a decision by the court of final appeal required to develop the law or ensure consistency of case law.
The central issue was whether a shareholder guarantor is entitled to a right of withdrawal under Article 9(1) of Directive 2011/83/EU where a guarantee agreement was concluded at a distance or off-premises. The BGH found no reason to refer this question to the Court of Justice of the European Union under Article 267(3) TFEU.
Earlier Case Law Addresses the Relevant Arguments
The Bundesgerichtshof referred to its judgment of 22 September 2020 – XI ZR 219/19. In that judgment, it had already considered and rejected the arguments advanced in support of a guarantor’s right of withdrawal under § 312g BGB.
From the BGH’s perspective, the issue of EU law had therefore been resolved by its existing case law. It consequently considered a request for a preliminary ruling from the Court of Justice of the European Union unnecessary.
Latvian Decisions Did Not Lead to a Different Assessment
The complainant also relied on decisions of the Supreme Court of Latvia. However, the BGH did not consider those decisions to reflect a different assessment of the issue of EU law relevant to the present case.
The Latvian court had merely considered whether the guarantors concerned qualified as consumers within the meaning of Latvian consumer protection law. By contrast, it had not decided whether a guarantor is entitled under EU law to a right of withdrawal in the case of a distance or off-premises contract.
Accordingly, in the BGH’s assessment, there was neither an unresolved issue of EU law nor conflicting case law from a supreme court that would have required a referral to the Court of Justice of the European Union.
Significance for Guarantees Given by Shareholders
The order confirms the Bundesgerichtshof’s restrictive case law on the application of consumer withdrawal rights to guarantee agreements. Accordingly, a shareholder guarantor cannot invoke § 312g BGB even if the guarantee agreement was concluded at a distance or off-premises.
At the same time, the BGH reaffirmed the significance of its judgment of 22 September 2020 – XI ZR 219/19. As it considered the decisive issue of EU law to have already been resolved, the court saw no reason to initiate preliminary ruling proceedings before the Court of Justice of the European Union.
Context within Banking Law
The decision concerns the interaction between the law of guarantees, consumer protection and EU provisions governing withdrawal rights. The contractual structure of the guarantee arrangement in question, the scope of the secured claims and the circumstances in which the agreement was concluded remain decisive when assessing a specific guarantee relationship. MTR Legal advises and represents clients on legal issues concerning guarantees and the enforcement of credit security as part of its banking law advisory services.
