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Enforcement proceedings against the GmbH: De facto managing director must provide a statement of assets
Specialist article in corporate law
Key message of the ruling
In its decision of October 22, 2025 (I ZB 47/25), the German Federal Court of Justice (BGH) ruled that creditors must not be disadvantaged by straw man arrangements. If the registered managing director acts only formally and has no knowledge of the company's financial situation, the actual managing partner must be summoned to provide a statement of assets.
Facts: Straw woman without any knowledge in the business sector
In the enforcement proceedings, the formally appointed managing director appeared at the hearing and stated that she had no insight into the business operations; her role was limited to a part-time job. She also performed similar formal functions for other companies. The creditors argued that the sole shareholder and former managing director was in fact running the business.
Lower courts: Too narrow an interpretation of the duty to provide information
The local and regional courts rejected the application to summon the sole shareholder. They ruled that the registered managing director was solely responsible; she had already provided the necessary information. The creditors successfully appealed on points of law.
Legal basis: Section 802c of the German Code of Civil Procedure (ZPO) and actual position as an organ
Basically, the obligation to provide information about assets rests with the legal representative (§ 802c para. 1 sentence 1 ZPO; in the case of a GmbH, § 35 GmbHG).
However, the Federal Court of Justice (BGH) emphasizes: This does not preclude considering a de facto managing director as obligated to provide information, provided that he actually manages the business and the formal managing director herself points out her lack of knowledge.
Effective creditor protection instead of circumvention through straw man schemes.
The Senate invokes the right to access to justice: disclosure of assets must be effectively enforceable. A legal entity may not evade its obligation to disclose information by using a straw man.
Third-party information pursuant to Section 802l of the German Code of Civil Procedure (ZPO) does not constitute an equivalent substitute. A sworn statement of assets under threat of imprisonment is the strongest means of coercion.
Return: Verification of the actual guide
The regional court is now required to examine whether the sole shareholder actually manages the GmbH (limited liability company). Indications of this could include, among other things, a lack of expertise and inactivity on the part of the formal managing director, multiple mandates without actual exercise of those mandates, and signs of a lack of economic control. Should this be confirmed, I will request the shareholder to submit a statement of assets.
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