In essence the Federal Supreme Court held (II ZR 171/00):

“The granting of loans which are neither derived from reserves (Rücklagen) nor profit carry forwards but from dedicated assets (gebundenes Vermögen) of the GmbH to shareholders will, in principle, be assessed as prohibited payments (Auszahlungen) of shareholders’ assets even if the re-payment claim against the shareholder exists in the individual case.”

As a result, loans between subsidiary and parent companies that cannot be paid out of free assets (freies Vermögen) are inadmissible.
Up to now the concept was as follows: In case of the parent company’s solvency (Bonität) an exchange was conducted on the assets side. If there was a positive balance on the business account of the subsidiary company this would be dissolved in case of a corresponding transfer of money to the parent company. Instead, the subsidiary company’s re-payment claim against the parent company was recorded on the balance sheet. This was deemed neutral for balance sheet purposes. The case law of the Federal Supreme Court, whereby such loans need not be recorded as assets on the balance sheet, inevitably means that payments are only admissible provided they are made out of free assets, usually from free reserves.

Several legal writers (e.g. Schäfer, GmbHG 2005, 133) take the view that the above case law of the Federal Supreme Court is not applicable to company groups and to cash pooling. However, this view has not been confirmed by the courts yet. For safety’s sake you should only consider cash pooling if sufficient free reserves are available. As and when necessary, free reserves may be created provided original capital (Stammkapital) is liquidated and re-dedicated as free reserves on the balance sheet. Further, it would appear that a restructuring into a different corporate form, e.g. a Limited or Limited & Co. KG, renders the case law of the Federal Supreme Court inapplicable.  There are a number of restructuring options on which we would be pleased to advise you.