BGH on Withdrawal of an Insolvency Petition by a GmbH
The Bundesgerichtshof (BGH, Federal Court of Justice) ruled by order of 25 June 2026 – IX ZB 6/24 – on the withdrawal of a debtor’s own petition to open insolvency proceedings over the assets of a GmbH (German limited liability company). The central issue was whether one managing director may withdraw an insolvency petition filed by another managing director, even though the managing director who filed the petition has not been removed or left office and a general prohibition on disposals had meanwhile been ordered.
The IX. Zivilsenat (Ninth Civil Senate) answered in the affirmative as to the general possibility of such a withdrawal. At the same time, it clarified that a withdrawal may be ineffective if it is abusive, in particular if the GmbH is in fact illiquid or overindebted. The decision is intended for publication in the official collection and continues the case law of the BGH, in particular the order of 10 July 2008 – IX ZB 122/07.
Facts: Dispute over Management and Insolvency Petition
Managing Directors of a GmbH with Sole Power of Representation
The debtor was a GmbH. Two individuals, K. and H., were each managing directors with sole power of representation. On 26 August 2020, the shareholders’ meeting resolved to remove H. According to the findings, no final and binding decision had been issued on the action challenging that resolution.
On 20 September 2021, the shareholders’ meeting also resolved to remove K. The Landgericht Lübeck (Regional Court of Lübeck) declared this resolution void; H. appealed against that decision. Against this corporate-law background, K. filed a petition on 4 October 2022 for the opening of insolvency proceedings for the GmbH and based it on illiquidity.
Provisional Insolvency Administration and Subsequent Withdrawal
The insolvency court, the Amtsgericht Eutin (Local Court of Eutin), ordered provisional insolvency administration on 21 October 2022. In addition, the debtor was made subject to a general prohibition on disposals. On 15 December 2022, H. declared the withdrawal of the insolvency petition.
H. justified the withdrawal, among other things, by stating that there was no illiquidity. He also argued that K. had no longer been authorised to represent the GmbH when filing the petition on 4 October 2022 due to an effective removal.
Nevertheless, by order of 10 May 2023, the Amtsgericht opened insolvency proceedings over the assets of the GmbH and at the same time appointed the further participant 1 as insolvency administrator. The immediate appeal lodged by H. in the name of the debtor was unsuccessful before the Landgericht Lübeck. The appellate court took the view that the declaration of withdrawal was ineffective due to the general prohibition on disposals.
Decision of the BGH: Appeal on Points of Law Successful
Set Aside and Remitted
The appeal on points of law was successful before the Bundesgerichtshof. The BGH did not set aside the contested decision with a final ruling on the merits, but remitted the proceedings to the appellate court. The appellate court must now examine the relevant factual and corporate-law issues.
The appeal on points of law was admissible because it had been allowed by the appellate court. The objective of the legal remedy was to set aside the opening order. The BGH also clarified that the debtor may be adversely affected by the opening of insolvency proceedings on its own petition; the adverse effect required for the appeal on points of law resulted in any event already from the dismissal of its immediate appeal.
Panel and Value of the Proceedings
The decision was handed down by the IX. Zivilsenat of the Bundesgerichtshof, composed of Presiding Judge Prof. Dr. Schoppmeyer as well as Judges Röhl, Dr. Harms and Weinland and Judge Dr. Selbmann. The value of the appeal-on-points-of-law proceedings was set at EUR 1,950,000. The decision is published, among other places, in ZRI 2026, 836.
Withdrawal Possible Despite General Prohibition on Disposals
§ 13 Abs. 2 InsO Remains Decisive
Under § 13 Abs. 2 InsO (German Insolvency Code), an insolvency petition may be withdrawn until the opening of insolvency proceedings or until the final and binding dismissal of the petition. According to the BGH decision, this also applies if the insolvency court has previously ordered a general prohibition on disposals under § 21 Abs. 2 Satz 1 Nr. 2 Fall 1 InsO.
The wording of § 13 Abs. 2 InsO contains no restriction for cases in which provisional protective measures have been ordered. The general prohibition on disposals serves to protect the future insolvency estate. According to the BGH’s reasoning, however, it is not intended to secure the later decision on the opening of proceedings.
Withdrawal Is Not a Disposal within the Meaning of the Insolvency-Law Prohibitions
The BGH did not classify the withdrawal of the insolvency petition as a disposal within the meaning of § 24 Abs. 1, § 81 Abs. 1 InsO. The prohibition on disposals is limited to its procedural purpose and extends only as far as required to protect the insolvency estate. Upon an effective withdrawal, the insolvency petition proceedings come to an end.
The BGH therefore rejected the appellate court’s view that the withdrawal was ineffective solely because of the general prohibition on disposals that had been ordered. Protective measures under § 21 InsO do not, without more, exclude the statutory possibility of withdrawal under § 13 Abs. 2 InsO.
Withdrawal by Another Managing Director
General Principle for Managing Directors with Sole Power of Representation
The BGH further clarified that an insolvency petition filed by a managing director of a GmbH on the grounds of illiquidity or overindebtedness can, as a general rule, also be withdrawn by another managing director authorised to represent the GmbH alone. This does not apply only where the managing director who filed the petition has previously left office. Rather, withdrawal may also be considered where the managing director who filed the petition remains in office.
The BGH thereby decided an issue that has long been discussed in legal literature. The decision concerns the corporate representation of the GmbH in insolvency petition proceedings and does not restrict the power to withdraw to the person who originally filed the petition.
Limit: Abusive Withdrawal
However, withdrawal is not effective in every case. The BGH derived a limitation from the purpose of § 15 Abs. 1 InsO. Legal entities that are illiquid or overindebted are to be kept out of business dealings.
A withdrawal that prevents a substantive examination of the insolvency petition may therefore be abusive and ineffective. The second official headnote makes clear that this is the case if the GmbH is in fact illiquid or overindebted. Whether these requirements were met in the case decided had not yet been examined by the appellate court.
Corporate-Law Representation Arrangements Must Be Examined
Commercial Register Status Alone Is Not Sufficient
In the BGH’s view, the appellate court was not permitted to rely solely on the entries in the Handelsregister (Commercial Register). Rather, it must clarify the corporate-law representation arrangements insofar as the nullity of a removal resolution or the provisional effectiveness or ineffectiveness of a challenged removal resolution is at issue.
This applies both to K.’s authority to represent the company when filing the petition and to H.’s authority to represent the company when declaring the withdrawal. In the further proceedings, it will therefore have to be examined whether K. validly filed the insolvency petition and whether H. was able validly to represent the debtor when withdrawing it.
Nullity and Voidability of Removal Resolutions
The BGH distinguishes according to which defects in a shareholders’ resolution are asserted. If it is argued that a removal resolution is void by corresponding application of § 241 AktG (German Stock Corporation Act), this must also be examined in insolvency proceedings. Other breaches of law or the articles of association, by contrast, lead to nullity only if the resolution has been declared void with final and binding effect in an action seeking its annulment.
Where only defects are asserted that establish voidability, the provisional effectiveness of the respective resolution is decisive. If a chair of the meeting has determined that a particular resolution was adopted, the resolution is provisionally binding with the content so determined. In the case decided, however, there were no findings as to whether the respective voting results had been determined.
Key Points of the Decision
The BGH decision contains several statements that are significant for insolvency petition proceedings involving a GmbH. They concern both the effect of provisional protective measures and corporate representation, as well as the limits of the power to withdraw.
- An insolvency petition may be withdrawn under § 13 Abs. 2 InsO until the opening of proceedings or until final and binding dismissal.
- A general prohibition on disposals under § 21 Abs. 2 Satz 1 Nr. 2 Fall 1 InsO does not, as such, preclude withdrawal.
- Another managing director with sole power of representation may, in principle, withdraw the petition even if the managing director who filed the petition has not left office.
- The withdrawal is ineffective if it is abusive, in particular in the event of actual illiquidity or overindebtedness of the GmbH.
- Where removal resolutions are disputed, the appellate court must examine the relevant corporate-law representation arrangements.
- The debtor may be adversely affected by the opening of proceedings on its own petition.
Significance for GmbHs, Management and Insolvency Proceedings
Classification within the BGH Line of Case Law
The BGH does not expand the duties to file for insolvency, but clarifies the possibilities for withdrawal in ongoing insolvency petition proceedings. Prior to this decision, it had already been recognised by the highest court that a managing director may withdraw a petition filed by another managing director if the managing director who filed the petition had previously left office. It is now clarified that withdrawal is not excluded solely because the petitioner remains a managing director.
At the same time, withdrawal remains subject to clear limits. The BGH links effectiveness to the purpose of insolvency law, namely to keep legal entities that are illiquid or overindebted out of business dealings. Actual illiquidity or overindebtedness may therefore stand in the way of the effectiveness of the withdrawal.
Practical Scope in Cases of Disputed Management
The decision is particularly significant for cases in which, within a GmbH, the effectiveness of removal resolutions and thus the authority of individual managing directors to represent the company is disputed. In such constellations, the insolvency court or the appellate court may not simply limit itself to the register status. Rather, it must examine the corporate-law issues relevant to representation to the extent described by the BGH.
The decision therefore shows that insolvency-law and corporate-law issues can be closely intertwined in insolvency petition proceedings. Especially in the case of parallel proceedings challenging resolutions, the assessment of the provisional effectiveness or nullity of shareholders’ resolutions may become decisive for the validity of an insolvency petition or its withdrawal.
Frequently Asked Questions
BGH IX ZB 6/24: Can Another Managing Director Withdraw a GmbH’s Insolvency Petition?
Yes. According to the BGH, another managing director authorised to represent the GmbH alone may, in principle, also withdraw the petition. This also applies if the managing director who filed the petition has not been removed or left office.
§ 13 Abs. 2 InsO: Does a General Prohibition on Disposals Prevent Withdrawal of the Insolvency Petition?
No. A general prohibition on disposals under § 21 Abs. 2 Satz 1 Nr. 2 Fall 1 InsO does not, as such, preclude withdrawal under § 13 Abs. 2 InsO. According to the BGH decision, withdrawal is not a disposal within the meaning of the insolvency-law prohibitions on disposals.
What Practical Consequences Does the BGH Order IX ZB 6/24 Have for Companies with Disputed Management?
Where removals of managing directors are disputed, the validity of an insolvency petition or its withdrawal may depend on the corporate-law representation situation. The court must examine these issues according to the standards set by the BGH and may not rely solely on the status shown in the Commercial Register.
Assessment by MTR Legal Rechtsanwälte
The order of the Bundesgerichtshof makes clear that the withdrawal of an insolvency petition by a GmbH may require a precise examination of the insolvency-law requirements and the corporate-law representation arrangements. For companies, shareholders, managing directors and investors, this may have significant consequences for ongoing or impending insolvency petition proceedings. MTR Legal Rechtsanwälte advises clients on legal issues at the intersection of corporate law, restructuring and insolvency; further information is available under Legal advice in insolvency law.
