The Bundesgerichtshof (BGH, Federal Court of Justice) has once again addressed the requirements for filing the final balance sheet in transformation transactions. The focus was on the question of the conditions under which the final balance sheet of the transferring legal entity, which must be attached to the application pursuant to § 17 Abs. 2 Satz 1 UmwG (German Transformation Act), can still be validly filed after the application.
According to the decision of the II. Zivilsenat (Second Civil Senate), a later filing is not sufficient without any time limit. If it is not made promptly, this may prevent the registration of a spin-off.
BGH on the final balance sheet when applying for registration of a spin-off
§ 17 Abs. 2 Satz 1 UmwG provides that the final balance sheet of the transferring legal entity must be attached to the application for registration of a transformation. The Bundesgerichtshof had already held that this final balance sheet may be filed subsequently if this is done promptly after the application. According to the case law, this possibility exists irrespective of whether the final balance sheet filed later had already been prepared at the time of the application.
The II. Zivilsenat has now referred to these principles in a further set of proceedings. The subject matter was the registration of the transfer of part of the assets of one of the parties by way of a spin-off.
No prompt filing where there is a significant time gap
Annual balance sheet had already been available much earlier
The Bundesgerichtshof held that a filing is in any event no longer to be regarded as prompt if the annual balance sheet as of 31 December 2023 is filed only by written submission dated 21 July 2025, even though it had already been available in December 2024.
Against this background, the Registergericht (registration court) was ultimately right to refuse registration of the asset transfer by way of a spin-off. The decision of the Registergericht had previously been addressed by the Kammergericht (Berlin Higher Regional Court) in an order dated 18 February 2025.
Reasonable period set by interim order
According to the decision, a subsequent filing may be considered prompt if it is made within a reasonable period set by an interim order. The relevant provisions in this respect are § 382 Abs. 4 Satz 1 FamFG (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction) and § 25 Abs. 1 Satz 3 HRV (Commercial Register Ordinance).
The Bundesgerichtshof left open whether the two-week period set by the Registergericht in the specific proceedings was reasonable. The Senate therefore did not make any general statement as to whether a two-week period in comparable cases would always be sufficient or always insufficient.
Classification within the BGH’s previous case law
The decision is connected with the earlier order of the Bundesgerichtshof dated 18 March 2025 – II ZB 1/24. In this preceding case, the II. Zivilsenat had already clarified that the final balance sheet pursuant to § 17 Abs. 2 Satz 1 UmwG may be filed subsequently, provided that this is done promptly after the application.
The preceding case also shows that the subsequently filed final balance sheet must have a balance sheet date within the eight-month period under § 17 Abs. 2 UmwG. In the case at that time, the Registergericht had set the company a one-month period for subsequent filing, which was likewise not observed. This circumstance provides a point of comparison with the question, left open in the proceedings now decided, of the reasonableness of a two-week period.
References for the decision
The order of the Bundesgerichtshof dated 15 September 2026 – II ZB 3/25 is cited, among other sources, as BeckRS 2026, 23989. In addition, the decision has been published in the journal Zeitschrift für Wirtschafts- und Bankrecht, specifically in WM 2026, 1925-1926.
In the journal review, the decision is listed under the keyword “Prompt subsequent filing of the final balance sheet of the transferring legal entity to be attached to the application for registration of a transformation pursuant to § 17 Abs. 2 Satz 1 UmwG” (translation). The relevant reference there is on page 2306 of the ZID issue of 5 October 2026.
Key statements of the decision
At its core, the decision can be condensed into several points:
- The final balance sheet under § 17 Abs. 2 Satz 1 UmwG may be filed subsequently after the application for registration of a transformation.
- The subsequent filing must be made promptly.
- A subsequent filing is in any event not prompt if an annual balance sheet already available in December 2024 is filed only by written submission dated 21 July 2025.
- A filing made within the prescribed period, within a reasonable period set by an interim order, may be regarded as prompt.
- The Bundesgerichtshof did not decide in the proceedings whether a specifically set two-week period was reasonable.
Significance for spin-offs and register proceedings
The decision highlights the importance of timing requirements in registration-law proceedings relating to transformations. If the final balance sheet is not filed together with the application, the possibility of filing it later remains subject to strict timing requirements.
At the same time, the decision shows that the mere subsequent existence of a final balance sheet is not the only decisive factor. What is also decisive is whether the filing after the application can still be regarded as prompt and whether a set deadline was observed.
Frequently asked questions
BGH II ZB 3/25: When is the subsequent filing of the final balance sheet under § 17 Abs. 2 Satz 1 UmwG prompt?
According to the decision, a subsequent filing may be prompt if it is made within a reasonable period set by an interim order. In the case decided, the filing in July 2025 was in any event not prompt because the balance sheet had already been available in December 2024.
§ 17 Abs. 2 Satz 1 UmwG: Does the final balance sheet already have to be attached when applying for registration of the spin-off?
The Bundesgerichtshof permits a later filing if it is made promptly after the application. According to the previous case law, this applies irrespective of whether the final balance sheet had already been prepared when the application was filed.
What practical consequences does BGH II ZB 3/25 have for companies in a spin-off?
The decision shows that late filing of the final balance sheet may prevent the registration of a spin-off. For companies, it is particularly relevant that deadlines set in register proceedings and the temporal proximity to the application play a central role.
Corporate law support from MTR Legal
Transformations, spin-offs and registration-law proceedings require a precise assessment of the statutory requirements and current case law. MTR Legal Rechtsanwälte supports companies, investors and high-net-worth individuals in corporate law matters in a national and international context. Further information can be found at Legal advice in corporate law.
