Germany: news on the shareholder list

The problem
When a new shareholder list must be submitted in the commercial register due to a change, it must satisfy the requirements of § 40 I GmbHG [Limited Liability Companies Act] in the version of 23/06/2017 according to the decision of the BGH [Federal Supreme Court] dated 26/06/2018 – II ZB 12/16.

A shareholder of a GmbH [limited liability company] transferred his share to a company established under civil law (GbR). The notary then created a modified shareholder list in which no information was contained on the shareholders of the GbR and submitted this to the Registry Court at the end of 2015. The Registry Court refused to record the list due to the lack of information on the GbR shareholders. The appeal submitted against this was rejected by the appellate court, on the grounds that the legal necessity of this information pertaining to the GbR shareholders stems from an analogous application of § 162 I sentence 2 HGB. During the ongoing legal complaint procedure, § 40 I 2 GmbHG was amended, which now determines that the shareholders of a GbR must be listed by name in the shareholder list.

The ruling of the BGH
The BGH confirmed the decision of the appellate court. § 40 I 2 GmbHG was amended with effect from 26/06/2017, with the consequence that the respective shareholders of companies that have not been entered in a register must be included in the shareholder list with their name, date of birth and residence. The application of the new provision is based on the transitional provision enacted for this purpose of § 8 EGGmbHG [German Introductory Act to the German Companies Act]. From the wording of the transitional provision, it is not clear whether the date that is decisive for the applicability of the new provision should – in the case of old companies – depend on the event triggering the obligation to submit a list, on the emergence of an obligation to submit the list, on the actual submission of the list or on the recording of the list in the register folder.

With the new version of § 40 I 2 GmbHG, legislators have prepared a welcome equivalent to the legal situation in the case of shares held by a GbR in a KG (see § 162 HGB [German commercial code]). It must be noted in the future that if a change in shareholders takes place in the GbR, this will also have direct effects on the shareholder list of the Gmbh. Since in the event of changes in the shareholder structure at the level of a GbR, a notary is not normally involved – the assignment of a GbR company share can be made in any form – in accordance with § 40 I GmbHG, the new shareholder list must be submitted to the Managing Director(s) of the GmbH. The Managing Directors of a GmbH must therefore ensure that they are always informed immediately about any personnel changes in the shareholder GbR.

All shareholder lists that were submitted prior to 26/06/2017 and have not yet been included in the register folder, regardless of the reason, are to be adapted to the requirements of the latest version of § 40 I GmbHG, and also to the specifications of the ordinance on shareholder lists, which entered into force on 01/07/2018.

Author: Axel Berninger