Managing Director’s Liability for Payments Made After the Onset of Insolvency in a Cash Pool

In its judgment of 4 May 2026 (case no. 1-12 U 42/25, ZRI 2026, 724), the Higher Regional Court of Düsseldorf (OLG Düsseldorf) issued a comprehensive ruling on the managing director’s liability under § 15b InsO (new version) in the context of intra-group cash pool structures. The decision clarifies key questions regarding the concept of “payment”, the cessation of payments within a corporate group, and the standard of care applicable after expiry of the grace period. The judgment confirms the continued applicability of the principles developed by the Federal Court of Justice (BGH) under the former Section 64 GmbHG.

Facts of the Case

The claimant is the insolvency administrator of the estate of a group-affiliated GmbH & Co. KG (the “Debtor”). The defendant was the managing director of the Debtor’s general partner (Komplementärin).

The Debtor did not have a business account of its own. All payments were processed through an intra-group cash pool operated by the pool leader (parent company), which was domiciled in the Netherlands. The cash pool was backed by a revolving credit facility. The defendant informed the cash manager which liabilities were to be settled. The pool leader then made the required liquidity available as a downstream loan and settled the liabilities on a same-day basis. Through a zero balancing mechanism, the account was swept to zero at the end of each business day.

As determined by the court, the Debtor was balance-sheet insolvent (überschuldet) as of 31 December 2020. On 25 August 2021, the landlord terminated the lease without notice due to outstanding rent arrears. The business was discontinued no later than 30 September 2021. Nevertheless, the defendant continued to initiate disbursements to third-party creditors via the cash pool account totalling 124,422€. The insolvency administrator seeks repayment of these amounts. The defendant argued that the Debtor had access to liquidity at all times through the cash pool.

Key Findings of the Court

The OLG Düsseldorf upheld the claim in full and ordered the defendant to reimburse 124,422€. The court made the following key findings:

1. Inability to Pay Through Cessation of Payments: The court found that the Debtor had ceased making payments no later than 25 August 2021. The non-payment of essential operating costs – in particular rent for the business premises – constituted strong evidence of an inability to pay within the meaning of § 17(2) InsO. The court rejected the defendant’s cash pool argument: in assessing whether payments had ceased, it was irrelevant how a company refinanced itself through internal group structures. What mattered was that the pool leader had in fact not made any liquidity available for the rent payments.
2. Unwillingness to Pay Does Not Rebut Inability to Pay: While a cessation of payments may also be attributable to an unwillingness to pay, an unwillingness to pay that is relevant under insolvency law only exists where the debtor is in fact still able to pay. Where the conditions for a cessation of payments are met, it is presumed pursuant to § 17(2) sentence 2 InsO that the debtor was unable to pay. The defendant was unable to rebut this statutory presumption.
3. Balance Sheet Insolvency Since 31 December 2020: The court determined that the Debtor had been balance-sheet insolvent within the meaning of § 19 InsO no later than 31 December 2020. According to the annual financial statements, there had been a loss not covered by equity. A positive going concern forecast was not available due to the absence of a restructuring concept, an earnings plan, and a financial plan. The discontinuation of business by 30 September 2021 confirmed this finding.
4. Broad Concept of “Payment” in the Cash Pool: The concept of “payment” within the meaning of § 15b InsO is to be interpreted broadly and encompasses all reductions in the company’s assets. This also applies where the managing director received the funds for the payment from a third party – in particular from another group company. Although the cash pool account was held in the name of the pool leader, it had been established exclusively – akin to a trust account – for the Debtor. Since liquidity was provided as a loan prior to each transfer, the account was in credit before each disbursement. Consequently, there was no estate-neutral liability swap (Passivtausch).
5. Initiation by the Managing Director: The defendant had “initiated” the payments within the meaning of § 15b(4) sentence 1 InsO. For an act diminishing the insolvency estate, it suffices that the managing director participated in the payment. If the director is able to prevent the outflow of assets and it is reasonable to expect them to do so, this also constitutes an act diminishing the estate. The decisive impetus for the payments came from the defendant, as she had informed the cash manager in each instance which liabilities were to be settled.
6. No Reliance on Conflict of Duties in the Event of Wrongful Trading: In the stage of wrongful trading (Insolvenzverschleppung), the managing director cannot rely on the principles of emergency management and conflict of duties recognised under the former law (§ 15b(3) InsO). The grace period under § 15b(2) InsO had long since expired due to the balance sheet insolvency existing since 31 December 2020. The defendant had argued that she was obliged to make the payments because the pool leader had provided the funds earmarked for specific creditors; withholding the funds would have exposed her to criminal liability for breach of trust (§ 266 StGB). This argument did not succeed: the defendant need not have instructed the transfers at all; through the zero balancing mechanism, the funds would have automatically flowed back to the pool leader, so that no disadvantage would have arisen for the pool leader.
7. Standard of Care After Expiry of the Grace Period: In principle, payments made in the ordinary course of business are consistent with the duty of care of a prudent manager (§ 15b(2) sentence 1 InsO). However, where the deadline for timely filing has passed and the party obliged to file has not done so, payments are generally no longer consistent with this standard of care pursuant to § 15b(3) InsO. In the present case, the payments in dispute also included tax payments to the tax authority of North Rhine-Westphalia (NRW) and a social security contribution to the AOK Hessen (Allgemeine Ortskrankenkasse Hessen – a regional statutory health insurance fund). The OLG Düsseldorf held that these payments were also subject to reimbursement: outside the grace period, every payment is in principle a breach of duty – this applies even to tax payments and social security contributions, which during the grace period are privileged pursuant to § 15b(8) InsO.
8. Fault and Legal Consequences: The fault of the managing director is presumed pursuant to § 15b(1) sentence 2 InsO. The defendant was unable to rebut this presumption, as she had taken no measures to maintain an overview of the company’s financial position, had not prepared a liquidity status, and had not sought external expert advice. The reimbursement of 124,422€ was awarded in full. Each individual disbursement constitutes a procedurally independent claim. Leave to appeal was not granted.

Practical Significance of the Ruling

The ruling of the OLG Düsseldorf has considerable practical significance for managing directors and advisors in group structures:

1. Appellate Court Clarification on § 15b InsO in a Cash Pool: The ruling provides comprehensive appellate court guidance on managing director liability under § 15b InsO (new version) in the context of intra-group cash pooling structures. The OLG Düsseldorf confirms the continued applicability of the principles developed by the Federal Court of Justice (BGH) under the former § 64 GmbHG.
2. A Cash Pool Does Not Protect Against a Finding of Cessation of Payments: Managing directors of group companies should be aware that participation in a cash pool does not protect against a finding of cessation of payments. Internal group refinancing structures are irrelevant from the perspective of the relevant business community when assessing whether payments have ceased. The decisive factor is whether debts due for payment are actually being satisfied.
3. Broad Concept of Payment in Group Structures: The broad concept of “payment” under § 15b InsO also encompasses payments processed through intra-group cash pool structures. Even where the funds formally originate from a group company, a diminution of the insolvency estate occurs if the liquidity was previously provided as a loan. The OLG Düsseldorf has thus convincingly resolved the question of the estate-neutral liability swap (Passivtausch) in a cash pool context.
4. Distinction Between the Grace Period and Wrongful Trading: The judgment illustrates the fundamental distinction between the grace period under § 15b(2) InsO and the stage of wrongful trading (Insolvenzverschleppung) under § 15b(3) InsO. During the grace period, payments made in the ordinary course of business are generally still privileged, provided they serve to maintain business operations or to prepare an insolvency filing. After expiry of the filing deadline without a filing having been made, payments are generally in breach of duty – including tax payments and social security contributions.
5. No Conflict of Duties as Justification: The decision makes clear that an alleged conflict of duties – for example, arising from contractual obligations towards a group company acting as pool leader – does not constitute a justification for payments diminishing the insolvency estate in the stage of wrongful trading. Managing directors can avoid any self-inflicted conflict of duties by filing for insolvency in a timely manner.
6. Practical Recommendations for Managing Directors: Managing directors of group companies should, irrespective of intra-group financing structures, always maintain an independent overview of the financial position of their company. This includes, in particular, the regular preparation of a liquidity status, a current overview of assets and liabilities, and the early engagement of external expertise at the first signs of a crisis. Only in this way can compliance with the obligation to file for insolvency be ensured and personal liability be avoided.

Our experts are available to assist you with questions regarding managing director’s liability, the crisis-resilient structuring of (intra-group) financing arrangements, and the obligation to file for insolvency.