Die faktisch abhängige GmbH im konzernweiten Cash Pooling

Cash pooling is an integral part of today’s intra group financing, but at the same time entails – even after “MoMiG” and the MPS ruling by the Federal Court of Justice (Bundesgerichtshof) – significant (liability) risks for the participating parties and their respective management bodies. This thesis analyses the conditions required for legal cash pooling using the example of a subsidiary company in the legal form of an LLC (GmbH). It analyses whether and to what extent liquidity transfers to the pool (so-called upstream loans) are permissible, the management’s subsequent monitoring obligations, the liability risks for the organisations and people involved (sections 30, 31, 43 and 64 GmbHG and sec. 826 BGB) as well as the consequences of the parent company. With regard to sec. 135 InsO, the author also outlines the consequences of repaid or offset downstream loans if the subsidiary company goes bankrupt.