Gesellschafterdarlehen und stehengelassene Gewinne in Familienunternehmen

It has not been definitively determined whether family businesses require a banking licence pursuant to sec. 32 para. 1 sentence 1 of the German Banking Act (KWG) for corporate financing with shareholder loans and profits left in the business. Considerations regarding the scope of sec. 32 of the KWG, especially its limitations, and an interpretation of the elements of the deposit business pursuant to sec. 1 para. 1 sentence 2 no. 1 of the KWG generally make clear that such a licence is not necessary. On the one hand, shareholder loans and profits left in a business are not covered by the protective purpose of sec. 32 of the KWG, especially since they are comparable to other excluded operations and due to systematic and legal policy-related considerations. On the other hand, shareholder loans and profits left in a business are not banking transactions in the form of deposits. They can neither be qualified through interpretation as unconditionally repayable funds nor as funds from the public.