von Göler (Hrsg.) / Ulrich Schnelle / § 16

§ 16 Legal status following change in shareholders or extent of participation; purchase from non-authorised persons

(1) In the event of a change in the person of a shareholder or the extent of his participation, the owner, in relation to the company, of a share shall be deemed to be only whoever has been included as such in the list of shareholders entered in the Commercial Register (section 40). A legal act performed by the transferee in relation to the company shall be deemed effective from the beginning if the list is entered in the Commercial Register without undue delay after performance of the legal act.

(2) The transferee as well as the transferor shall be held liable in respect of obligations to pay capital contributions which are overdue at the point in time from which the transferee is deemed, in relation to the company, to be the owner of the share pursuant to subsection (1), first sentence.

(3) The transferee may effectively acquire a share or a right in a share from a non-authorised person by legal transaction if the transferor has been named as the owner of the share in the list of shareholders entered in the Commercial Register. This shall not apply if, at the time of the purchase, the list was incorrect in respect of the share for no more than three years and the incorrectness cannot be attributed to the person entitled. Further, a purchase in good faith cannot be made if the transferee is aware of the lack of authorisation or is unaware of the lack of authorisation as a consequence of gross negligence or if an objection to the list has been entered. The objection is entered on the basis of an interim order or on the basis of the approval of that person against whose authorisation the objection has been raised. A threat to the right of the person raising the objection need not be substantiated.

Information for non-professionals

To Information for legal professionals

Relevance for legal relations

a) General

1The provision contained in paragraph 1 of section 16 of the German Limited Liability Companies Act (GmbHGA list of abbreviations is provided at the end of this section ) came into effect as per 01.11.2008 in conjunction with the German Act to Modernise the Law on Limited Liability Companies and Combat Abuses (MoMiG) of 23.10.2008, BGBl I, 2026. This provision regulates who, subject to which conditions and with effect from when is to be deemed to be the owner of a share in relation to the company. Section 16 GmbHG is intended to improve transparency and combat abuses.Explanatory memo (RegBegr) BT-Drs. 354/07, 84

2This provision is to be read in close connection with sec. 40 GmbHG which regulates the formalities applying to the list of shareholders. This is because all of the areas regulated in section 16 refer to the content of this list of shareholders which has to be recorded in the commercial register. That person who is entered in this list is deemed to be the owner of the respective share in relation to the company, regardless of whether that person is a shareholder under substantive law (para. 1). In addition to the shareholder previously entered, he is liable for arrears on obligations to pay capital contributions for the relevant share even if he is said to have not legally acquired it (para. 2). Third parties can acquire the relevant share (in good faith) from persons entered in the list of shareholders even if the transferor recorded in the list is not the owner of the share under substantive law.

3Under the law applying hitherto (section 16 GmbHG old version), a distinction was also made between the formal status as shareholder and the status as shareholder under substantive law. This provision did not, however, rely on the entry in a list of shareholders for this distinction, but on the registration of the share transfer with the company. The list of shareholders which was also provided for and had to be filed with the commercial register under the old law had no relevance in this respect.

4The new version of section 16 is worded in line with section 76 II German Stock Corporation Act (AktG). As under section 16 GmbHG, pursuant to section 76 II AktG a person is only deemed to be a shareholder in the relation to the company if that person is recorded as such in the register of shares.

5By publishing the list of shareholders in the commercial register, the recommendations of the Financial Action Task Force on Money Laundering (FATF) and Directive 2006/60 EG of 26.10.2005 to prevent the use of the financial system for the purpose of money laundering and terrorist financing in the European Union are being implemented.RegE on the MoMiG of 25.07.2007, RegBegr. on section 16, BT-Drs. 16/6140, 89; in summary: Michalski/Ebbing, GmbHG, 2nd edition (2010), § 16 margin nos. 1 - 7; Baumbach/Hueck/Fastrich, GmbHG, 20th edition (2013), section 16 margin no. 1; MüKoGmbHG/Heidinger, 2nd edition (2015), § 16 margin nos. 1, 12, 14 and 15

6Section 16 applies to every kind of change of shareholder, i.e., above all, to the sale of shares by legal transactions, but also to changes in shareholder status by virtue of inheritance, by means of enforcement proceedings, in cases of company reorganisation or accrual (Anwachsung).Michalski/Ebbing, GmbHG (footnote no. 3 above), section 16 margin no. 8 – 12; RegBegr. on MoMiG of 25.07.2007, RegBegr. on section 16, BT-Drs. 16/6140, 91; Lutter/Hommelhoff/Bayer, GmbHG, 18th edition (2012), section 16 margin no. 7; MüKoGmbHG/Heidinger (footnote no. 3 above), section 16 margin no. 90

7The provisions of section 16 III GmbHG create for the first time the preconditions for a share in a GmbH to be purchased in good faith and are intended to considerably simplify the legal relations involving GmbH shares.

8So as to gain an initial overview of the significance of section 16 GmbHG to legal relations and to its application with respect to the rule of law and since diverse interests are involved, namely at least those of the old shareholder, of the possible new shareholder and, above all, of the company, its management and also of the notaries and the commercial register, it is advisable to have a presentation from the perspective of the various stakeholders. The following examination will look into the provisions of section 16 I and II GmbHG first of all, then at the possibility of acquisition of a GmbH share in good faith pursuant to III.

b) Section 16 I and II GmbHG from the perspective of the company

9The point of reference for the status of shareholder is solely the list of shareholders recorded in the commercial register. The inclusion of the entry of the new shareholder in the list of shareholders recorded in the commercial register is not the precondition for the effectiveness of the transferor of any other disposition. If the transfer is effective pursuant to section 15 GmbHG for example and also if it is otherwise effective (e.g. legal capacity of the parties), the transferee is the owner of the share even without being included in the list of shareholders and publication thereof in the commercial register and may dispose of this share. In relation to the company, however, the acquisition does not become effective until the transferee is included in the list of shareholders and this list is recorded in the commercial register. As far as drawing up the list and filing it with the commercial register are concerned, solely the managing directors are responsible for this and also domestic notaries in the event of their being involved in changes in the status of shareholders (cf. section 40). A new list of shareholders only has to be drawn up and filed in the event of changes in the persons who are shareholders or in the extent of their participating share. There is no change in the persons who are shareholders in the event of a change of members of an OHG (Offene Handelsgesellschaft), KG (Kommanditgesellschaft) or in a BGB external partnership (BGB-Außengesellschaft), or in the case of a transfer subject to a condition precedent (e.g. conditional upon payment of the purchase price or on approval of a merger by the German Cartel Office), as long as the condition has not been satisfied.BGH (German Supreme Court), ruling of 20.09.2011, II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e944317a983e59b61512e3989a15ecec&nr=58010&pos=0&anz=1, NZG 2011, 1268; Baumbach/Hueck/Fastrich (footnote no. 3 above), section 16 margin no. 9 The court of registration only examines compliance with the formal condition of section 40 I and section 40 II, not the substantive correct nature of the list.BGH, ruling of 20.09.2011, II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e944317a983e59b61512e3989a15ecec&nr=58010&pos=0&anz=1, NZG 2011, 1268 margin no. 10 The register can, however, reject the list if details are obviously erroneous or based on an obvious error.OLG (Court of Appeal) Munich, decision of 08.09.2009, 31 Wx 82/09, NJW 2010, 305  

10The managing director and the notary act on the basis of a statutory obligation and they are not subject to instructions from the transferor or transferee or the meeting of shareholders when drawing up the list. However, in principle, managing directors only act upon the notification and respective evidence of a change in the group of shareholders. No special form is required. It is, however, necessary for the company to be convincingly notified of the transfer of the rights. Such evidence may not be waived in the articles of incorporation, nonetheless a stricter form, e.g. certification etc., may be prescribed therein.Scholz/Seibt, GmbHG, 11th edition (2012), section 16 margin no. 13  

11List of shareholders: 

  • This list must be drawn up by a person authorised to do so and
  • be filed by a person authorised to do so (the respective managing director or a notary who is involved).
  • Pursuant to section 40 I GmbHG, the list is amended by the managing director upon his being notified by and receiving evidence from a person authorised to do so.
  • The list must include the precise content specified in section 40.

12If the board of management establishes that an entry made in the list by the notary is incorrect, then the board of management may correct the list accordingly.BGH, judgment of 17.12.2013 – II ZR 21/12, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=f48682f6ce42c127ecdcfde3390e9bcf&nr=66543&pos=0&anz=1, ZIP 2014, 216  

13A notary abroad is also authorised to file a list of shareholders, at least insofar as his legal position and the respective notarisation under the respective national law is comparable to that of a German notary public’s office (in this specific case in the canton of Basle city in Switzerland).BGH, ruling of 17.12.2013 – II ZB 6/13, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=4f1e5f6cf1dfb5f30db6ab5447e99923&nr=66653&pos=0&anz=1; ZIP 2014, 317; Seibt, EwiR 2014, 171  

14The entries to be made in the list are: family name, first name, date of birth and place of residence of the person concerned and the nominal amounts of the shares and the sequential numbers of the allocated shares.

15The duly compiled list of shareholders is to be imputed to the new shareholder, irrespective of who it is ultimately filed by, and complies with the publication requirements by being recorded in the commercial register.MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 41  

16The new shareholder has a legal right to the list of shareholders being filed with the commercial register.MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 42  

17The list of shareholders is only afforded no effectiveness if there is a general ground for excluding imputation to the person communicating it or of the person being entered therein, e.g. compulsion to conduct the act, representation without power of representation, forgery or lack of legal capacity.Baumbach/Hueck/Fastrich, (footnote no. 4 above), section 16 margin no. 12; Lutter/Hommelhoff/Bayer, (footnote no. 4 above), section 16 margin no. 13; MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 44

18The precondition for the list of shareholders evolving all legal effects is its being recorded at the register. It is recorded in the register file determined for the respective register sheet (section 9 para. 1 Commercial Register Ordinance, HRV). The commercial register has no examination function but only a custodial function that also enables general cognisance.MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 82; RegBegr. BT-Drs. 16/6140, 38 It is solely the date on which the list is recorded that is decisive in determining the effectiveness of the list of shareholders pursuant to I and also III and – above all – for the delimitation of liability pursuant to II. Up until only a few years ago this decisive date was not evident in the commercial register, neither for the shareholders affected nor for the GmbH or for the relevant public.Scholz/Seibt, (footnote no. 8 above), section 40 margin no. 24; MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 83 The legislator must ensure that the date of recording is electronically combined with the list of shareholders by the court of registration in such a way as to ensure that the date is permanently secured and visible together with the list. The technical preconditions for including the date of the list in the commercial register have since been established.

19Insofar as the ownership, the extent of the participation, the denomination of the shares and the personal data of the shareholder are included in the list of shareholders, then the irrefutable assumption of ownership applies once the list has been recorded in the commercial register.Lutter/Hommelhoff/Bayer, (footnote no. 4 above), section 16 margin no. 27; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 11 The company cannot claim that the list was incorrect if it is responsible for the errors in the list itself, for instance in the event of non-notification or if the list does not correspond to the notification. Conversely, the company cannot invoke the irrefutable assumption of the list published in the commercial register if the company has the notification and the evidence, but the managing director delays recording the details in the list of shareholders and filing the list.Lutter/Hommelhoff/Bayer, (footnote no. 4 above), section 16 margin no. 13; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 11  

aa) Legal situation in the relation of the shareholders to the company pending the recording of the new list in the commercial register

20In the period of time before the recording in the commercial register of a list of shareholders incorporating changes, for instance following the acquisition of a share by a new shareholder or because of an inheritance or a reorganisation of the company, the shareholder who is recorded in the old list is deemed to be legitimised. That shareholder is deemed to be the shareholder in relation to the company together with all rights and obligations. The new shareholder, e.g. the transferee, cannot bring a claim to any shareholder rights before the list is recorded in the commercial register, in particular he cannot exercise his right to vote.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 14 He is notably also unable to dismiss the board of management or to appoint new managing directors. Before the list is recorded in the commercial register it is only the former shareholder, e.g. the transferor, who is liable for obligations from the shareholding in relation to the company. This also applies to obligations that fall due in the period of time between the sale and the recording of the new list in the commercial register.

bb) Legal situation after the new list is recorded in the commercial register

21Once the new list has been recorded in the commercial register (see above with regard to the problems relating to the date as evidence of the list being recorded in the commercial register) only the new shareholder is authorised in relation to the company. The shareholder can require, in particular, payment of profit, provided that nothing to the contrary is agreed in the purchase contract with the previous shareholder. If the transfer of the share is ineffective, then the shareholder entered in the list nonetheless applies in relation to the company, something which is also binding for the court of registration.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 16

cc) Retroactive effect of the recording of the list of shareholders in the commercial register without delay (I sentence 2)

22In accordance with sec. 16 I sentence 2 GmbHG, a transferee who is either not yet entered in the list or with respect to whom the list is not yet recorded in the commercial register should, immediately after the acquisition becomes legally effective, have the possibility of participating in shareholder resolutions to change the articles of association and, above all, also in appointing new managing directors.RegBegr. BT-Drs. 16/6140, 38 The retroactive effect only applies to legal acts of the transferee, i.e. of the shareholder, not also vice versa to legal acts of the company in relation to the transferor or to the transferee.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 46  

23The retroactive effect only arises, however, if the list is recorded in the commercial register without undue delay after the legal act has been performed. In legal terms, without undue delay “unverzüglich” means that the recording may not be culpably delayed. It raises the question, however, of whose culpability is relevant in this case. There is consensus in that delays originating from the sphere of the commercial register are said to be non-prejudicial.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 47; Lutter/Hommelhoff/Bayer, (footnote no. 4 above), section 16 margin no. 37; of divergent opinion MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 144 As far as legal relations are concerned, the statutory regulation is at least unfortunate. According to the wording of the statute, legal acts by the transferee in respect of his relationship to the company are provisionally ineffective pending the new list being recorded in the commercial register. The measures only become effective when the list is recorded. This means that important measures concerning the management which are also relevant with respect to third parties, for example removing the old managing director and appointing a new one, are initially ineffective. The legal position actually signifies that the managing director holding the position hitherto, who can only be removed and dismissed in a provisionally ineffective manner, continues to be in office, but the new managing director does not yet hold office.

24The effect which the legislator actually sought to achieve is for all measures which the transferee takes in relation to the company to be provisionally effective until that point in time when the list should actually be recorded in the commercial register. Although this completely reverses the wording of the statute, it is the only practicable solution. The measures are then provisionally effective in legal terms. This means that it would be the newly appointed managing director who would also be responsible for filing the registration and for executing measures that have been resolved and no longer the managing director who has been removed. This is why clarifying the date by which the new list has to be recorded in the commercial register is of immense importance. Apart from the fact that referring to culpability is unsatisfactory, fixed time limits are suggested for the term “without undue delay”, e.g. two weeks,MüKoBGB/Kramer, volume 1, 6th Edition (2012), section 121 BGB margin no. 6 or four weeks.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 47; Baumbach/Hueck/Fastrich, (footnote no. 3 above), § 16 margin no. 20 If the list has not been recorded in the commercial register within this time limit, then the old situation will continue to apply, i.e. as if the new shareholder had not become a shareholder after all and all (interim) resolutions and measures are ineffective.

25So as to avoid being exposed to this legislative error, the parties to a share purchase and transfer agreement should, in any case, agree that the transferee may assert his rights in relation to the company with immediate effect, for instance by means of the transferor representing him or by the transferor complying with his instructions in a ballot.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 49; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 21  

dd) Liability of the transferor and the transferee in relation to the company pursuant to section 16 II

26When the list is recorded in the commercial register, then the transferor withdraws from the company relationship with respect to the company and from the obligations still existing under the relationship, notably, for example, also from a non-competition clause.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 22 The transferor continues to be liable for all performance due prior to the registration being filed with and recorded in the commercial register. This can be of relevance, in particular in connection with questions relating to a failed increase in capital in kind or regarding additional contributions which are due.

27Once the list is recorded in the commercial register, the transferee is liable for all contribution claims, but also for all types of differential liability (“Differenzhaftung”, liability for a shortfall in the value of a contribution in kind and the nominal value of the share subscribed to) and for additional contributions. The transferor and the transferee are liable as joint and several debtors in relation to the company.BGH, judgment of 04.03.1996, II ZR 89/95, BGHZ 132, 137  

28A deviation from this statutory ruling can be agreed by the transferor and the transferee in a corresponding share purchase and transfer agreement.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 25  

c) Position of the shareholders

aa) Transferor (old shareholder)

29Subject to a different agreement being reached between the transferor and the transferee, the old shareholder (transferor) is authorised and obliged in relation to the company pending the recording of the new list of shareholders identifying the transferee. The transferor must collaborate in drawing up a new list of shareholders. Above all the transferor shall refrain from influencing the notary (if a notary is involved in the transfer of the share) or the managing director in any way whatsoever to the effect that the list is not filed at all or filed belatedly. The consequence of any such collaboration between the old shareholder and the notary/managing director is that the old list of shareholders is ineffective or that the old shareholder cannot rely on this list.

bb) Transferee (new shareholder)

30The new shareholder has a claim against the managing director or the notary, if a share transfer is involved, to have an amended list of shareholders prepared and immediately filed for recording in the commercial register. In the event of a violation against this statutory duty, the managing director is liable for damages pursuant to section 40 III GmbHG.

31However, the new shareholder does have to notify the managing directors accordingly and to provide proof of the transfer of the share. The principle applies here too that any collusive collaboration between a new shareholder and the notary/managing director with regard to the submission of an incorrect list of shareholders has no effect. The list does not then acquire the effect of an irrefutable assumption ordered by law.

32The managing director can instruct heirs to provide evidence of their inheritance right by submitting a respective certificate of inheritance.

33In order for the list to become fully effective, the recording must be imputable to both the transferee and the transferor.MüKo GmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 62  

34A difficult legal position arises for a transferee who acquires the share subject to a condition precedent (e.g. subject to payment of the purchase price or approval by the German Federal Cartel Office (Bundeskartellamt)). Until the condition precedent has been satisfied, the transferee may not be entered in the list of shareholders, so that he has to ensure that the notary is notified once the condition has been met. The transferee is subject to most legal uncertainty in those cases where a share is transferred subject to a condition precedent, as here it is possible for there to be certain manipulations with regard to the notification to the notary that the condition has been met, so that the notary cannot compile an amended list of shareholders and submit it to the commercial register for recording.

d) Position of the board of management

35The board of management is afforded very great significance in the context of drawing up and submitting the list of shareholders. The managing director is not expected to examine complex legal situations; he does, however, have to examine the plausibility of any signatures he is not familiar with, denominations of the GmbH shares or the addresses of the parties involved.

36The legislator clarifies the managing director’s strong commitment to his legal duties by making the managing director liable for damages if he violates such duties with regard to the list of shareholders section 40 III GmbHG.

37The German Supreme Court (Bundesgerichtshof) has even imposed the duty on the managing director to submit a corrected list even if the original, but incorrect, list was compiled by the notary.BGH, judgment of 17.12.2013 – II ZR 21/2012, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=f48682f6ce42c127ecdcfde3390e9bcf&nr=66543&pos=0&anz=1, ZIP 2014, 216  

38In order to make it as easy as possible for a managing director to comply with the requirements of sections 16 and 40 GmbHG, the company and the shareholders should be intent on having the list with a change in shareholders compiled by a notary in as many cases as possible, i.e. to have a notary collaborate in the transfer of shares wherever this is not required by law anyway, for instance in the case of a share transfer pursuant to section 15 GmbHG which still has to be in notarial form.

e) Effects on notaries

39As far as the compilation of the list of shareholders by a notary is concerned, the notifications and the evidence of the transfer of the share by the new shareholder affected are not of decisive importance. The notary has to judge the legal position on the basis of his own competence. A possible error by the notary does not impair the effects of the list of shareholders.MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 64  

40According to section 40 II sentence 2 GmbHG, the list must be furnished with notarial certification. The law thus documents that a list compiled by a notary has a higher guarantee of being correct and thus an increased effect of the ostensible existence of a legal situation (Rechtsscheinwirkung).MüKoGmbHG/Heidinger, (footnote no. 3 above), section 16 margin no. 64  

41The notary can incur problems above all in the event of a share transfer subject to a condition precedent if the parties do not notify the notary that the condition has been met. Here the extent to which the notary then has duties to clarify the true facts and circumstances is disputed.

f) Effects on third parties

42The following acts can have effects on third parties that are not to be under-estimated: measures by the (new) board of management in the state of abeyance between the sale of the share, appointment of the new board of management by the transferee and the failure to have the list of shareholders recorded in the commercial register. If the list is not recorded in the commercial register without undue delay pursuant to section 16 I, 2 sentence GmbHG, then the appointment of the new managing director is not effective and the company was not duly represented.

g) Acquisition in good faith pursuant to 16 III GmbHG

43The innovation of section 16 GmbHG which probably has most significance in terms of legal relations, is the possibility of shares being purchased in good faith. Here too, it is the list of shareholders that is the point of reference for a purchase in good faith. Good faith is not, however, protected to the extent that the wording of the statute implies. Above all, good faith in the existence of the share and in its freedom from encumbrances is not protected.BGH, ruling of 20.09.2011, II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e944317a983e59b61512e3989a15ecec&nr=58010&pos=0&anz=1,  NZG 2011, 1268, margin no. 19; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 26 Good faith in the existence or non-existence of limited rights in rem is not protected either, since rights such as these cannot be entered in the list of shareholders. Above all, there is no protection of good faith in the fact that the shareholder can freely dispose of the share without the consent of the company or of the remaining shareholders (so-called restriction on transferability “Vinkulierung”).Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 76; Rodewald, GmbHR 2009, 196, 197, Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 26 Furthermore it is not possible to purchase a share in good faith that has become part of assets involved in insolvency proceedings (section 81 I 1 German Insolvency Statute (InsO)).

aa) Basic preconditions for a purchase in good faith

44The following conditions must be met for a purchase in good faith to be possible:

  • The share must exist;
  • The details of the owner or of the extent of his participation must have been entered incorrectly in the list of shareholders recorded in the commercial register;
  • The acquisition of a share must have been performed by a legal transaction;
  • There must be imputability to the authorised person or the three year period must have expired;
  • There must be no objection;
  • The transferee must have no knowledge or grossly negligent lack of knowledge of the transferor’s lack of authorisation.
bb) Existence and denomination of the share

45Only a share that exists can be acquired.RegBegr. BR-Drs. 354/07, 88; Götze/Bressler, NZG 2007, 894, 897  

46Good faith in the correct nature of the denomination is also protected. This means that if the share does actually exist, but the denomination of the share is incorrectly stated in the list, e.g. because the combination or division of shares has not been recorded, then it is possible to have acquisition in good faith of the share in its correct denomination.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 28  

cc) The list of shareholders is incorrect

47A further requirement for acquisition in good faith is that an incorrect list of shareholders has to have been recorded in the commercial register. If the list is incomplete in any way, for instance if the signature of the managing director is missing, the details relating to the alleged owner cannot be identified or it is not possible to identify the share, then acquisition in good faith is not possible.In summary of this: Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 29  

48A list of shareholders is incorrect if it does not comply with the legal position under substantive law. This applies above all if an acquisition is ineffective because of defective form, due to lack of approval by the company or the shareholders, insofar as this is a requirement of the company’s articles of association, or because it was effectively contested.Mayer, DnotZ 2008, 403, 417; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 29 According toBGHcase law, ruling of 20.09.2011, II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=e944317a983e59b61512e3989a15ecec&nr=58010&pos=0&anz=1, NZG 2011, 1268, margin no. 14 , it is not possible to have acquisition in good faith in respect of a share that has been conditionally transferred. This problem is based on the following constellation: The shareholder who has been incorrectly recorded in the list transfers his share to a new shareholder subject to a condition precedent (subject to payment of the purchase price, approval by the cartel office). Before the condition has been met, the shareholder transfers the share again to another new shareholder. This new shareholder cannot acquire the share in good faith as the list of shareholders was not incorrect in the intervening period as long as the condition had not been met. The list of shareholders cannot capture a transfer of shares subject to a condition precedent. It is correct until the time when the condition has been met and then the new shareholder is entered in the new list. The result is unsatisfactory to a certain degree as the second transferee who actually acquires the full right, is in a poorer position than the first transferee who can acquire the share in good faith once the condition has been met.

dd) Acquisition by performance of a legal transaction

49Unlike paragraphs I and II, paragraph III only applies to acquisition of shares by performance of a legal transaction, not to acquisition by inheritance, by merger or formation of a community of property.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 30

50A further important precondition is for a so-called Verkehrsgeschäft, a legal transaction between two different parties, to have been conducted. This means that unrelated third parties have to be involved on both the transferor and the transferee side, as otherwise there is no need to protect good faith. Above all, cases of a so-called third party trust (fremdnützige Treuhand) or of a transfer to a company which is also controlled by the shareholder do not constitute a Verkehrsgeschäft.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 31

ee) Reasons for exclusion for a purchase in good faith
Lack of imputability of the incorrect nature of the list within the three year period

51If the incorrect list of shareholders, identifying the non-authorised transferor as shareholder, has not yet been recorded in the commercial register for more than three years (see below with regard to calculating the three year period), then there is no acquisition in good faith if the incorrect nature of the list is not imputable to the actual but not recorded authorised person. If the incorrect nature of the list was in the area of risk of the authorised person, he must have the incorrect nature imputed to him and cannot intervene.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 105; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 33 The incorrect nature of the list is imputable to the person actually authorised above all if it is he himself who somehow contributed to the list being incorrect. However, there is no fundamental obligation to regularly monitor the list of shareholders recorded in the commercial register.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 35 The truly authorised party has to become active, however, if he obtains knowledge of the incorrect nature of the list of shareholders. If he fails to do anything, it is possible to have an acquisition in good faith from a transferor who is wrongly recorded.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 106  

ff) The list has been incorrect for more than 3 years

52Notwithstanding who is responsible for the list being incorrect, acquisition in good faith is always possible if the list has already been incorrect for over three years. The point in time that is decisive in determining the beginning of the time period, i.e. for calculating the three year period, is the date on which the incorrect list of shareholders is recorded in the commercial register. If the list was correct initially and a change of ownership occurred later which was not documented, the latter point in time is the decisive time. If one incorrect list follows another incorrect list, then the first date is decisive on which an incorrect list was recorded in the commercial register.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 101; Lutter/Hommelhoff/Bayer, (footnote no. 4 above), section 16 margin no. 79; Mayer, DnotZ 2008, 403, 420; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16, margin no. 36  

gg) Objection

53Acquisition in good faith is also prevented by an objection made by the authorised person as soon as he is allocated to the list. The objection is either entered with the consent of the person whose formal position the objection is addressed against (but in practice this is probably rarely the case).Scholz/Seibt, GmbHG, (footnote no. 8 above), section 16 margin no. 95; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 37 Something which occurs more frequently in practice is having an interim ordered issued by the court with jurisdiction, whereby the true legal position of the authorised person has to be made credible, but not the concrete jeopardy to his legal position (III 5).

hh) Knowledge of lack of authorisation and failure to know of lack of authorisation due to gross negligence and the authoritative point in time

54Acquisition in good faith is ruled out if the transferee has knowledge of the fact that the transferor is not authorised to transfer the share.

55Cases of a lack of knowledge as a consequence of gross negligence are more difficult: A transferee allegedly acting in good faith significantly fails to adhere to the duty of care required in business, he fails to heed something which should have been apparent to anyone under the given circumstances.Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 38  

56In practice it is important to note, however, that the transferee is not obliged to conduct investigations without any specific grounds to do so. If, however, the transferee has concrete grounds to suspect a lack of authorisation, then he must obtain knowledge, otherwise he will be treated as having acted with gross negligence.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 86; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 38; Götze/Bressler, NZG 2007, 894, 898  

57The decisive point in time applying to knowledge or failure to have knowledge due to gross negligence is the date of completion of the transfer of the right.Scholz/Seibt, (footnote no. 8 above), section 16 margin no. 87; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 38 The legal position is different, however, in the case of a condition precedent (e.g. if the transfer is subject to approval by the German Federal Cartel Office) which the parties cannot influence the satisfaction of. In this case the transferee may not be in bad faith at the time of the transfer, knowledge at a later date or failure to have knowledge through gross negligence then no longer have a detrimental effect.Götze/Bressler, NZG 2007, 894, 899; Mayer, DnotZ 2008, 403, 422; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 38 The situation is different, however, if the transferee can still influence the condition to be met, above all if he performs the condition by paying the purchase price himself. Then it is the date on which the condition is satisfied which is decisive with regard to knowledge or lack of knowledge due to gross negligence.Götze/Bressler, NZG 2007, 894, 899; Baumbach/Hueck/Fastrich, (footnote no. 3 above), section 16 margin no. 38  

ii) Transitional ruling relating to paragraph 3

58Section 3 III Introductory Law to the German Limited Liability Companies Act (EGGmbHG) provides for a transitional ruling for a purchase in good faith: If the list of shareholders is incorrect with regard to a share prior to 01.11.2008, then if the incorrect nature is imputable to the person with substantive authorisation, section 16 GmbHG III shall only apply with effect from 01.05.2009. The authorised person therefore had six months’ time in which to adapt to the new regulation or to enforce his registration.

59If the list of shareholders was incorrect when the Act became effective on 01.11.2008, and if the incorrect nature was not imputable to the truly authorised party, acquisition in good faith is only possible for transactions entered into after 01.11.2011. Such cases are now rather unlikely in practice.

h) Overall evaluation of the regulation of section 16 GmbHG from the perspective of legal relations

60Section 16 GmbHG does not meet the high expectations of legal relations – especially as far as the possibility of a purchase in good faith of GmbH shares is concerned. This is primarily due to the fact that the point of reference is made to the list of shareholders as the basis for imputability. Such a list is manipulable despite all the provisions of statute and the liability imposed on the board of management to compensate for damage.

61However, it is the deficits in connection with acquisition in good faith that are more severe, namely that good faith in the authority of the transferor to effect the transfer is not protected, so that, for example, the absence of the company’s or the shareholders’ approval can prevent the effectiveness of the transfer and that the transferee’s good faith in this is not protected. Furthermore, it is still not possible to acquire shares in good faith that do not even exist.

62The provision embodied in section 16 I 2 GmbHG, which was actually intended to simplify the situation for a transferee whose name has not yet been entered in the list or with respect to whom the list has not yet been recorded in the commercial register, fails to achieve its purpose. This is because, if taken literally, it makes all the measures conducted by the new shareholder prior to the list being recorded in the commercial register provisionally ineffective. As illustrated above, the Act must be interpreted to the effect that the transferee can effectively conduct certain measures before being recorded, but if the list is not recorded in the commercial register, such acts then become ineffective.

63In view of the difficulties of both the concept and also the structuring of the statutory regulation, it is hardly surprising that there have been numerous judicial decisions relating to the new provision, but above all an almost incalculable number of publications in legal literature dealing with the statutory ruling and its deficits and offering possible solutions.

AktG Aktiengesetz German Stock Corporation Act
BGB Bürgerliches Gesetzbuch German Civil Code
BGBl Bundesgesetzblatt German Federal Law Gazette
BGB-Ges. BGB-Gesellschaft Partnership under the German Civil Code
BGH Bundesgerichtshof German Supreme Court
BT-Drs. Bundestag-Drucksache Explanatory memo - Printed document of the German lower house of parliament (Bundestag)
EGGmbHG Einführungsgesetz zum Gesetz betreffend Gesellschaften mit beschränkter Haftung Introductory Act to the German Limited Liability Company Act
GmbH Gesellschaft mit beschränkter Haftung Limited Liability Company
GmbHG Gesetz betreffend Gesellschaften mit beschränkter Haftung German Limited Liability Company Act
GmbHR GmbH Rundschau Specialist Journal relating to GmbH law
GWB Gesetz gegen Wettbewerbsbeschränkungen Act against Restraints of Competition
HGB Handelsgesetzbuch German Commercial Code
HRV Handelsregisterverordnung Commercial register ordinance
KG Kommanditgesellschaft Limited Partnership
KG Kammergericht Court of Appeal of Berlin
MittBayNot Mitteilungen der bayerischen Notare Legal journal for Bavarian Notaries
MoMiG Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen German Act to Modernise the Law on Limited Liability Companies and Combat Abuses
MüKo Münchner Kommentar Legal commentary
NJW Neue Juristische Wochenschrift Weekly legal journal
NZG   Legal journal
OHG Offene Handelsgesellschaft Partnership
OLG Oberlandesgericht Higher Regional Court (Court of Appeal)
RegBegr Regierungsbegründung Government reasoning
RegE Regierungsentwurf Government draft
UmwG Umwandlungsgesetz German Reorganisation of Companies Act
ZR Zivilrecht Civil law
ZIP Zeitschrift für Wirtschaftsrecht Legal journal on economics law
ZPO Zivilprozessordnung German Code of Civil Procedure
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Information for legal professionals

1) General

64Section 16 GmbHG contains three regulatory sections concerned with entering the (new) shareholder in the list of shareholders recorded in the commercial register pursuant to sec. 40 and thus makes certain aspects of the acquisition of shares dependent on being recorded in the list of shareholders. Paragraphs 1 and 2 relate to the relationship between the company and the shareholder.

2) Definitions

a) Legal effect of the entry in the list of shareholders recorded in the commercial register (section 16 I 1)

aa) Changes in the person of a shareholder:

67This relates to every change of shareholder. It can take the form of singular succession by way of transfer pursuant to sec. 15 III GmbHG, which also covers a transfer for security or trust purposes and also acquisition by way of forfeiture pursuant to sec.

3) Differentiation, casuistics

a) Legitimation effect of recording the list of shareholders in the commercial register

98Through the legitimation effect embodied in the provision of subsec. I 1, that person who is entered as shareholder in the list of shareholders recorded in the commercial register is deemed to be the shareholder in relation to the company and this applies independently of his substantive authorisation; this is also referred to as the formal status of shareholder.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 19; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 23

99The fact that the company has positive knowledge of the absence of substantive authorisation does not oppose the legitimation effect.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6), margin no. 20; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 51; BeckOK GmbHG/Wilhelmi, (footnote no. 3 above), margin no. 17 Limited real rights to a share which are not entered in the list of shareholders cannot, however, be exercised until after the acquisition thereof has been notified and evidenced.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16), margin no. 9; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 105; Wicke, GmbHG (footnote no. 14 above), margin no. 10  

100The point in time which is authoritative for the legitimation effect is the date on which the respective list of shareholders is recorded in the commercial register; prior to this date those persons entered in the last list of shareholders recorded in the commercial register are to be treated as shareholders unless the advance effect of sec. I 2 intervenes.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 21; Michalski/Ebbing, GmbHG(footnote no. 6 above), margin no. 58 et seqq.; Wicke, GmbHG (footnote no. 14 above), margin no. 3a A legal successor who has not yet been recorded must accept the legal acts undertaken by or with respect to his legal predecessors as binding on him, for example disbursing profit and exercising the voting right, including consenting to an amendment to the articles of association, but also an exclusion for cause or the redemption of a share.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16), margin no. 14; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 32  

b) Rights and obligations of the recorded shareholder

101The legitimation effect of subsec. I encompasses all shareholder rights and obligations. This means that it applies to administrative rights and property rights, in particular to the right to profit. Vice versa it also applies to the obligation to make the contribution, including the liability in the event of a concealed contribution in kind, for claims of the company due to differential liability (Differenzhaftung), liability for a prior burden (Vorbelastungshaftung) and a shell company purchase and also for other additional obligations and default liability (Ausfallhaftung).Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6), margin no. 28; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 155 et seqq.; Wicke, GmbHG (footnote no. 14 above), margin no. 3 The legitimation effect does not apply to the individual property rights resulting from the share which can be transferred separately, for instance claims which have specifically arisen with respect to profits or to credit balances following an apportionment or settlement.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6), margin no. 31; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 54; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 158  

c) Relationship to the situation applying under substantive law

102The entry in the list of shareholders recorded in the commercial register is not a precondition for the effectiveness of the acquisition of the status of shareholder, conversely it does not cure any substantive defects.Lutter/Hommelhoff/Bayer,GmbH-Gesetz (footnote no. 6 above), margin no. 22; Michalski/Ebbing, GmbHG (footnote no. 6), margin no. 49; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 150  

103The legitimation effect of subsec. It is thus a formal status of shareholder in relation to the company.

d) Special problems in the case of acquisition by inheritance

104The legitimation effect of subsec. I also applies to acquisition by inheritance, albeit subject to certain modifications with regard to the fact that the legal succession is effected by way of universal succession.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 17 In relation to the company, the heirs are not legitimised until the list of shareholders which has been amended accordingly has been recorded in the commercial register.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 17; Michalski/Ebbing, GmbHG (footnote no. 6), margin no. 96; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 131; Wicke, (footnote no. 14 above), margin no. 6

105The individual property rights in the share (obligee rights – “Gläubigerrechte”) which can be transferred independently, for instance claims which have specifically arisen with respect to profits or to credit balances following an apportionment or settlement, pass to the heirs pursuant to sec. 1922 BGB as they are not covered by the legitimation effect.Michalski/Ebbing, GmbHG (footnote no. 6), margin no. 98; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 131; differently: Baumbach/Hueck/Hueck/Fastrich, GmbHG(footnote no. 16 above), margin no. 17; Wicke, GmbHG (footnote no. 14 above), margin no. 6  

106Also, in the event of universal succession by way of acquisition under company reorganisation law, the transferee is not considered to be a shareholder in relation to the company until he has been legitimised by the respectively amended list of shareholders being recorded in the commercial register.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 101; Wicke, GmbHG (footnote no. 14 above), margin no. 8  

e) Incorrect list of shareholders

aa) The list of shareholders has been incorrectly compiled or submitted:

107The legitimation effect of the entry made in the list recorded in the commercial register can be lost insofar as it is obvious that the list is incomplete and incorrect, thus impairing the function of the list, for instance if fundamental details are missing, clearly incorrect or inconsistent.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 67, 70; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 53 It is particularly important that the signatures required are not missing.

108Inexistent shares are not encompassed by the legitimation effect, only the entitlement to shares that actually exist is legitimised by the list of shareholders, but not new shares.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 68 This also applies if the nominal amounts are missing. No new shares are legitimised in this case either; however the principles of the falsa demonstratio apply here if it is evident which share the incorrect details relate to.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 69; Wicke, GmbHG (footnote no. 14 above), margin no. 4 In addition, the legitimation effect also applies if the change to the extent of an existent share is wrongly stated, for example if, in case of a division, the quotas have been incorrectly cited.BeckOK GmbHG/Wilhelmi, (footnote no. 3 above), margin no. 36  

109There is no legitimation effect if the company or its management itself was responsible for the deviation between the substantive legal position and the list of shareholders. This is the case for instance if there is no notification or if the list deviates from the notification; conversely, the company cannot rely on the list of shareholders submitted to the commercial register if it is the company or its management that is responsible for the fact that no new list has been recorded, in particular if it delays amending the list or submitting it to the commercial register after receiving notification and evidence of the change.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 11  

110There is also no legitimation effect if the deviation between the legal position and the list of shareholders is not imputable to the shareholder. This is assumed to be the case if, for example, the notification or list of shareholders was incorrect because the notification or the list was forged or made or submitted by an unauthorised person or if there was no legal capacity or vis absoluta.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 12; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 13  

111If the management or the notary has knowledge of the substantive ineffectiveness of a notified transfer of a right, then there is similarly no legitimation effect either.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 11 If the transferee, transferor and/or managing directors act together in collusion, then the bogus transferee cannot rely on the legitimation effect of the incorrect list of shareholders, however in relation to the company he has to perform the obligations resulting from the incorrect list, insofar as his formal shareholder status is imputable to him.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 79 f.; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 54 f  

bb) Defective substantive change

112The fact that is of decisive importance for the purpose of the statute is that the legitimation effect is not opposed by the deviation of the list of shareholders from the substantive legal position. Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 61. If the act of becoming a shareholder is void, then the (bogus) transferee is deemed to be the transferee, but only in relation to the company, so that the transferor can bring a claim for unjust enrichment against the transferee and the company can exclude the shareholder or redeem the share. MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 57; Scholz/Seibt, GmbHG (footnote no. 20 above), margin no. 26.

113The legitimation effect does not apply, however, if the protection of the company under subsec. I has to be subordinate to the protective purposes giving rise to the invalidity of the transfer, above all in the case of legal incapacity or in the event of any other lack of imputability of the transfer contract (in the event of a violation of secs. 134, 138 BGB). MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 51 et seqq.; Wicke, GmbHG (footnote no. 14 above), margin no. 4; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 86 et seqq.

f) Reference back to the legitimation effect under subsection I 2

114Legal acts such as amendments to the articles of association, the dismissal and appointment of managing directors, are provisionally ineffective from the beginning; they are deemed to be effective ex tunc, however, if the amended list of shareholders is recorded in the commercial register without undue delay after the legal act has been performed, insofar as the ineffectiveness is solely based on the absence of legitimation pursuant to subsec. I 1.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 18; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 36; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 142 If the list is not recorded without undue delay, the legal act then becomes definitively ineffective, however.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 36; MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 144
Subsection I 2 does not procure an entitlement with respect to the company or the co-shareholders with respect to being permitted to participate in resolutions.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 18 The reference back does not only apply to acquisition by legal transaction, but also to acquisition by way of inheritance or company reorganisation.MüKo GmbHG/Heidinger, (footnote no. 8 above), margin no. 142

g) Liability for overdue performance pursuant to subsection II

115Pursuant to subsection II the transferee has no liability for claims for compensation of the GmbH against the transferor, for instance due to a violation of loyalty, based on the liability of founders embodied in section 9a or on default damage, or for reimbursement of an inadmissible refund of contributions pursuant to section 31 I.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 23; Wicke, GmbHG (footnote no. 14), margin no. 12 (see also b below): questions relating to liability under II - OLG Cologne.

h) Acquisition in good faith pursuant to subsection III

aa) Subject matter of the acquisition:

116It is not possible to have acquisition in good faith of a sub-participation, of the status of trustor under a trust agreement, as to this extent there is no change that occurs to the real property situation.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 57 Nor is acquisition in good faith possible for encumbrances on property that have already been created, as these are not entered in the list of shareholders.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 57 However, new encumbrances granted on property can be acquired in good faith. Also the so-called obligee rights, for instance the entitlements to payment of profits which are assigned solely under the law of obligations, cannot be acquired in good faith.Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 169; BeckOK GmbHG/Wilhelmi, (footnote no. 3 above), margin no. 77 Nor does subsection III enable an acquisition in good faith free of encumbrances, good faith in the non-existence of encumbrances on the share acquired is not protected because this would presuppose that real encumbrances can be entered in the list of shareholders, but this is not the case.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 60; Michalski/Ebbing, GmbHG (footnote no. 6), margin no. 251; Wicke, GmbHG (footnote no. 14 above), margin no. 16  

117Nor is good faith in the non-existence of the restriction of transferability within the meaning of section 15 V protected either,Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 26; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 62; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 248 or in a contribution with a fully debt-discharging effect or in the non-existence of overdue obligations for contributions with respect to the share within the meaning of subsection II.Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 61; BeckOK GmbHG/Wilhelmi, (footnote no. 3 above), margin no. 79

bb) Acquisition through a legal transaction

118Acquisition by statute, i.e. in the event of an inheritance by universal succession, by reorganisation of a company or establishing a property community, does not constitute a legal transaction,Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6), margin no. 65; Wicke, GmbHG (footnote no. 14 above), margin no. 18 nor does acquisition by means of a shareholders’ resolution constitute a legal transaction.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 3; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 65

cc) Acquisition from an unauthorised person

119The precondition for an acquisition in good faith is that the share has to exist. If the share does exist, but has a different denomination from that shown in the list of shareholders, then a distinction has to be made: Insofar as the denomination recorded in the list only leads to an existing share, or parts thereof, being allocated to the shareholder entitled under substantive law, for instance because the denomination was switched when a share was divided, then this constitutes a case of acquisition in good faith.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 28; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 247; Wicke, GmbHG (footnote no. 14 above), margin no. 15 However, it is not possible to have an acquisition in good faith of a share recorded with the wrong denomination if the incorrect denomination does not only lead to the wrong allocation of existing shares or parts thereof, but to the sum of the final amounts of the shares of all recorded shareholders exceeding the nominal capital, as in this case there would be at least a partial acquisition of a share that does not exist.Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 28; Wicke, GmbHG (footnote no. 14 above), margin no. 15  

dd) Lack of imputability and three year period

120It is assumed that there is no imputability of the incorrect nature of the list of shareholders recorded in the commercial register if the managing director submits an incorrect list without the knowledge of the shareholder.BegrRegE BR-Drs. 354/07, 88; Baumbach/Hueck/Hueck/Fastrich, GmbHG (footnote no. 16 above), margin no. 35; Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 80  

121In relation to a non-authorised person entered in the list, a separate three year period can start to run if a new unauthorised person is recorded who is also unauthorised with regard to the non-authorised person previously recorded, since the new unauthorised person would otherwise be privileged.BeckOK GmbHG/Wilhelmi, (footnote no. 3 above), margin no. 102  

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4) Summary of the jurisdiction

122With regard to the fundamental procedural questions, reference can be made to the presentation of the jurisdiction made in 4) above.

a) Legitimation effect

The shareholder of a GmbH is not dependent on having a judicial assessment of his legitimation in relation to the GmbH. This is determined by section 16 I GmbHG.

5) Literature

143The main discussions in legal literature relating to the interpretation of certain elements of section 16 are set forth below on those subjects on which jurisdiction has not yet – as far as can be seen – expressed an opinion.

a) Question relating to recording the amended list of shareholders in the commercial register without undue delay

144According to one opinion expressed in literature,

6) Frequently used (chains of) clauses

149The chains of clauses where section 16 GmbHG frequently appears are in conjunction with section 15 and with the formal provisions relating to the list of shareholders of section 40 GmbHG.

7) Remarks

Section 16 GmbHG does not satisfy the high expectations of legal relations – especially as far as the possibility of acquisition in good faith of GmbH shares is concerned. This is primarily due to the fact that the point of reference is to the list of shareholders as the basis for imputability. A list of shareholders is of itself manipulable, however, and it does not, for example, enjoy the public credence of the land register within the meaning of sec. 885 BGB.

The provision embodied in section 16 I 2 GmbHG, which was actually intended to simplify the situation for a transferee whose name has not yet been entered in the list or with respect to whom the list has not yet been recorded in the commercial register, carries the risk that, when taken literally, all the measures conducted by the new managing director prior to the list being recorded in the commercial register are provisionally ineffective. There are also difficulties with regard to the measures undertaken by the previous managing director who is dismissed with retroactive effect once the list is recorded in the commercial register. Here the parties involved can only be urgently advised to make provisions for these topics in the context of what is agreed in the share sale and purchase agreement or to grant respective powers of attorney.


Footnotes