According to Section 8c of the German Corporate Income Tax Act, tax losses carried forward by a German corporation will forfeit partially if more than 25%, or if more than 50% of the shares in the corporation are acquired by one acquirer or a group of acquirers within a period of five years.

As an exception to this rule, the Growth Acceleration Act (Wachstumsbeschleunigungsgesetz) introduced the possibility that tax losses carried forward should still be utilised where the change of ownership pursues a financial restructuring (Sanierungsklausel). According to the wording of the law, such financial restructuring would have had to fulfil several requirements, for example, the avoidance of insolvency proceedings while maintaining the substantial business organisation. The Sanierungsklausel should apply for restructurings conducted after 31 December 2007.

In February 2010, the European Commission has opened a formal investigation under EU Treaty state aid rules, as the Commission was concerned that the measure may favour ailing companies in comparison to healthy companies. Therefore, the Commission had doubts on the compatibility of the measures with the EU Guidelines on Rescue and Restructuring aid.

The German Federal Ministry of Finance reacted in April 2010 by issuing a decree according to which the tax administration was ordered to refrain from the application of the Sanierungsklausel.

On 26 January 2011, the Commission finalised the formal investigation and declared the provision to be unlawful state aid and ordered Germany to recover all already assessed tax reliefs based on this provision. According to the Commission's argumentation, the Sanierungsklausel is selective and therefore violates the EU Guidelines on Rescue and Restructuring aid, as it differentiates between ailing companies and healthy companies. Although both companies could generate losses, only ailing companies are eligible for the carry forward of such losses under the Sanierungsklausel. The conclusion of the Commission is that the Sanierungsklausel favours ailing companies and distorts competition.

As a result of the Commission's investigation, the German Federal Ministry of Finance is currently considering how to proceed. The decision of the Commission could be challenged within two months with an action for annulment, what is currently subject to discussion on the level of the German Federal Ministry of Finance. Another option would be to eliminate the Sanierungsklausel from the respective provision of the German Corporate Income Tax Act. Corporations, which have applied the Sanierungsklausel in the past must be prepared to face retroactive modifications of their tax assessments, which will lead to increased tax payments.

The court had to decide on the claim of an investor who holds participation certificates in a bank. The terms and conditions of those participation certificates provided for regular payments of interest to the investors. However, these payments were to be reduced or cancelled if the bank's profits were insufficient or if the bank did not make any profits at all, following the requirement of Section 10 (5) of the German Banking Act (Kreditwesengesetz – KWG) that investors in participation certificates in banks have to participate in full in the bank's losses.

Subsequently to the plaintiff investing in the participation certificates, the bank entered into a control and profit transfer agreement with another bank. Consequently, the parent company collected the profits of the 2007 business year and assumed the losses of the 2008 and 2009 business years. Therefore, the bank's balance sheet no longer gave appropriate information on its performance, nor how the investor was to participate in the bank's profits or losses.

For the 2007 business year, the bank made payment on the participation certificates based on its profits before transfer to its parent company, and the bank made payment on the participation certificates for the 2008 business year, even though it had suffered losses which the parent company had had to adjust under the control and profit transfer agreement. However, for the 2009 business year, when the bank again suffered a loss prior to adjustment by the parent company, the bank did not pay interest on the participation certificates, arguing that it was hindered by law to pay any interest for as long as the interest could not be paid from positive earnings of the relevant business year. The bank argued that, while the control and profit transfer agreement made it impossible to establish any positive or negative earnings from the actual financial statements, this gap would have to be filled by referring to the earnings and/or losses it would fictitiously have made, had the control and profit transfer agreement not been entered into.

To this, the court only agreed insofar as the actual financial statements could not be referred to as basis for calculating any disbursements, after the control and profit transfer agreement prevented any meaningful conclusions from them. While the court held that the defendant's approach to refer to its earnings and/or losses it would fictitiously have made, had the control and profit transfer agreement not been entered into might be appropriate for a mere profit transfer agreement (for example; an agreement that did not transfer control over the defendant), it argued that control over the defendant had also been transferred. As the court pointed out, such transfer of control leads to the risk of economical weakening of the defendant. Since investors could not be expected to bear such economic disadvantages resulting from the control being transferred to a parent company, simple reference to fictitious earnings or losses were not good enough to establish whether or not interest could be paid.

The plaintiff, while also agreeing that, because of the control and profit transfer agreement, the defendant's financial statements didn't provide a useful basis for the establishment of the payment of interest, based its claim on a different compensation model. Instead, it suggested referring to the prognosis for future earnings at the time when the control and profit transfer agreement had been entered into. In the case decided, this prognosis had been positive for the relevant years.

The court did not follow this line of argument, pointing out that, while the investors in the participation certificates could not be expected to accept the fact that the defendant would not be able to keep any of its profits under the control and profit transfer agreement, it still head to bear the general risk of economic change implicit to investment in the participation certificates. This ruled out reference to the prognosis of future earnings at the time when the control and profit transfer agreement had been entered into, because this would lead to a static tie to past developments, ignoring any developments after entry into the control and profit transfer agreement. For example, as in the given case, the recent crisis of the financial markets.

The case did not offer the opportunity for the court to approve a scheme that would allow for an adequate approach to interest calculation after entry into a control and profit transfer agreement. However, the court sketched a third concept that at least avoided the problems that caused the court to dismiss both the plaintiff's and the defendant's schemes. The court pursues the idea to make any distribution of interest subject to the parent company making the required balance profit required to make payment on the participation certificates. As a result, this would mean to treat the defendant's participation certificates as equal to such participation certificates issued by the parent company.

However, since neither the defendant nor the plaintiff had presented this line of argument to support its claim or defence, the court did not have the opportunity to finally decide on this scheme. Therefore it remains to be seen if this approach will be successful in future litigation.

On 11 February 2011, the German parliament passed the Act to Strengthen Investor Protection and to Improve the Operation of Capital Markets (Gesetz zur Stärkung des Anlegerschutzes und Verbesserung der Funktionsfähigkeit des Kapitalmarktes – AnsFuG) which will introduce significant changes to the regulation of German open-ended real estate funds.

The German Investment Act in its current form requires German investment management companies to grant investors of open-ended real estate funds the right to redeem the fund shares on each business day. This has led to problems in the past: some investment management companies made use of their "emergency right" under the Investment Act and closed the fund (for example; redemptions were not accepted for a specific period of time).

The AnsFuG introduces the option of the investment management company to redeem the fund units of open-ended real estate funds only on specific dates (at least once a year). Furthermore, it provides that redemptions exceeding EUR30,000 in a calendar half-year are only allowed after a two-year holding period. Redemption discounts (that were discussed throughout the legislative procedure) were eventually not introduced by the AnsFuG.

Existing investors are exempted from such exit requirements. However, the new rules apply for real estate funds established after 1 July 2011 and for existing real estate funds the latest as of 1 January 2013. The AnsFuG therefore requires investment management companies to implement new processes for monitoring and assessing redemption requests by investors.