Will 8 become 9? – Extension of the filing deadline for mergers?

In the event of a merger, a closing balance sheet of the transferring legal entity prepared on a reference date no more than eight months prior to the filing of the application must be submitted to the German commercial register. Until now, it was highly controversial whether the closing balance sheet could still be submitted after the expiry of the 8 - month period. In its decision of March 18, 2025 – II ZB 1/24, the Federal Court of Justice (BGH) allows the balance sheet to be submitted after the 8 - month period has expired, even regardless of when it was prepared, thereby finally providing legal clarity. This offers companies legal certainty in time-critical cases and alleviates concerns about the registration being rejected.

8-month period: The countdown for mergers

According to section 17 (2) sent. 4 of the German Reorganisation Act (UmwG), the registry court may only register the merger if the closing balance sheet of the transferring legal entity has been prepared as per a balance sheet date that is no more than eight months prior to the date of filing. This 8 - month period is a mandatory exclusion period. In practice, mergers are often carried out on the basis of the annual balance sheet, i.e. generally as of December 31 of a year. Accordingly, August 31 is often considered the deadline or the latest possible date for filing for registration of the merger with the commercial register. Compliance with the 8 - month period often poses considerable challenges for companies, especially those subject to statutory audit, in preparing the closing balance sheet in time before the deadline expires and avoiding the risk of rejection by the court.

Game changer: Missing closing balance sheet after expiry of the 8 - month period no impediment to registration! – De facto extension of the filing deadline?

Until now, it was disputed whether the closing balance sheet could be submitted after the 8 - month period had expired when filing for registration of the merger with the commercial register.

In its ruling of March 18, 2025, the Federal Court of Justice (BGH) provides clarity: Regardless of whether the closing balance sheet had already been prepared at the time of filing for registration, it can be submitted later. The only requirement is that this must be done in a timely manner. In the present case, the BGH considered a period of one month (set by the registry court) to be reasonable.

The Federal Court of Justice emphasizes that, due to the principle of proportionality, it must be possible for the applicant to submit missing documents at a later date, if necessary upon interim order of the registry court. This applies to the closing balance sheet, as it is not considered by the Federal Court of Justice to be an essential element of the merger. Essential elements of the merger are the merger agreement, the merger resolutions, and the necessary declarations of consent, which must be submitted by the deadline in order to enable the registry court to review the registrability of the merger.

The Federal Court of Justice also clarified that the closing balance sheet does not have to be prepared at the time of filing. According to the Federal Court of Justice, the 8 - month period specified in section 17 (2) sent. 4 of the German Reorganisation Act (UmwG) applies only to the period between the balance sheet date and the date of filing. According to the Federal Court of Justice, this would not contradict the purposes of the closing balance sheet to be submitted (such as accrual of income, creditor protection, etc.), which are mentioned in the literature and are partly controversial.

Practical tip: Flexibility only in exceptional cases

The Federal Court of Justice has issued a practice-friendly ruling granting companies the possibility of submitting their closing balance sheet at a later date (at least within a period of one month set by the court) in cases where timely preparation is problematic, even if the closing balance sheet is prepared only after the application has been filed. Even if this leads to a de facto extension of the filing deadline, when planning the timing of mergers, efforts should be made to file the closing balance sheet within the 8 - month period, as the registry court remains the authority that decides on the extension of deadlines for subsequent submissions.

The ruling of the Federal Court of Justice should also apply to other reorganisations under the German Regorganisation Act (demergers, spin-offs) for which the 8 - month period applies accordingly.