share capital

Which translation, when

Why

German company law names the capital after the company, Stammkapital for the GmbH, § 5 Abs. 1 GmbHG, Grundkapital for the AG, § 7 AktG, and Aktienkapital, the machine’s frequent offer, is at home in Swiss drafting, not in either German statute. The name carries a system. For the GmbH, § 30 Abs. 1 GmbHG bars payouts from the assets needed to cover the Stammkapital, softened where a full-value claim against the shareholder covers the outflow or a Beherrschungs- oder Gewinnabführungsvertrag stands behind it, § 30 Abs. 1 Satz 2 GmbHG, and § 31 GmbHG claws back what crossed the line anyway, the wall that upstream loans and cash pooling are measured against. The AG is stricter still, § 57 Abs. 1 AktG forbids returning contributions, subject to the same two gates since the MoMiG, § 57 Abs. 1 Satz 3 AktG, and § 57 Abs. 3 AktG lets only the Bilanzgewinn reach the shareholders. So the English distributable-reserves question, how much can we pay out, has no single German answer, it has a Rechtsform-shaped one, and the translation that misnames the capital has usually also misjudged the wall.

Typical mistakes

• Aktienkapital is Zürich, not Frankfurt, the German AG has Grundkapital, § 7 AktG, the GmbH Stammkapital, § 5 GmbHG, and the Swiss word in a German document betrays the training data.
• The wall has a gate, § 30 Abs. 1 GmbHG blocks payouts from the capital cover but stands aside for full-value claims against the shareholder and for the Vertragskonzern, § 30 Abs. 1 Satz 2 GmbHG, while § 31 GmbHG collects what crossed anyway.
• The AG plays harder, § 57 AktG binds the estate and hands out only the Bilanzgewinn, § 57 Abs. 3 AktG, so London instincts about distributable reserves overshoot in a German AG.

What matters

Cash pooling memos hit the wall by name: the parent asks the German subsidiary for upstream support, and the answer depends on the Rechtsform, § 30 Abs. 1 GmbHG for the GmbH, the stricter § 57 AktG for the AG, both walls sharing the same narrow gates since the MoMiG, full-value claims and the Vertragskonzern. The memo that says Aktienkapital for a GmbH has misnamed the wall and the company in one word.

Examples