If the number of employees employed by a company exceeds a certain threshold, the law provides for the establishment of a supervisory board co-determined by employees. In accordance with established case law, the number of employees is determined by taking into account past and future developments on the basis of reference periods of several months. In this way, random results due to short-term fluctuations in the number of employees and frequent changes in the structure of the supervisory board are to be avoided. In a new decision, the Bavarian Supreme Court has concretized this case law and strengthened the position of companies.

In the event of insolvency or overindebtedness of a legal entity, the members of the representative body or the liquidators are obliged to file for insolvency. In the event that the application for commencement of insolvency proceedings is not filed or not filed in due time, the representative body risks not only criminal prosecution but also personal civil liability vis-à-vis the creditors of the insolvent company. In individual cases, also contractual partners of the insolvent company can be held responsible. In a recent decision, the Federal Court of Justice (BGH) has dealt with the scope of civil liability for immoral delay to file for insolvency. This decision is of considerable relevance for practice.

In its ruling of 15 April 2021, the ECJ has rejected the legal opinion of the tax authorities and the Fifth Senate of the German Federal Fiscal Court: contrary to their opinion, a national restriction of a taxable entity with regard to partnerships as subsidiary companies is not compatible with EU law.. This entails both opportunities and risks.