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.

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. With respect to action aiming at acknowledgement of a shareholder’s legal position pursuant to section 256 I ZPO, there is therefore no interest in having the legal relationship established. Action for interim acknowledgement pursuant to section 256 II ZPO can be admissible, however, as has been confirmed by OLG Hamm in a specific case.OLG Hamm, judgment of 16.04.2014 – 8 U 82/13, NZG 2014, 783 (784) = GmbHR 2014, 935 = ZIP 2014, 1479  

b) Entering an objection pursuant to subsection III 3 alternative 2

123The person with substantive authorisation has a claim against the company which can be brought by taking legal action to have the list of shareholders amended Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 229; Wicke, GmbHG (footnote no. 14 above), margin no. 25 by applying for an interim order. Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 229; see also the case law of OLG Nuremberg above (77) and of the KG above (79). Contrary to the opinion of the OLG Brandenburg (margin no. 130 above) the claim has to be brought against the company.

Prior to expiry of the 3 year period it is necessary to make a suitable factual submission on the specific risk of a purchase in good faith. KG, ZIP 2014, 1881, above (77). This action may only be taken by the person who claims to be the owner of the share concerned. The respondent is that person who has been entered in the list of shareholders as the owner of the corresponding share. Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 74; further, also regarding the managing director, Roth/Altmeppen/Altmeppen, GmbHG (footnote no. 23 above), margin no. 77; Wicke, GmbHG (footnote no. 14 above), margin no. 25; also regarding co-shareholders Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 228.

The objection is cancelled with the approval of the person who applied for it or by cancelling the interim order Lutter/Hommelhoff/Bayer, GmbHG (footnote no. 6 above), margin no. 75; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 230; Scholz/Seibt, GmbHG (footnote no. 20 above), margin no. 97, as an “actus contrarius” to the possibility of entering an objection provided for in section 16 III 4. As ruled by the Kammergericht (KG) (142) above, there can be no question of submitting a new list of shareholders without entering an objection, as the list of shareholders as such remains correct without change and the conditions of section 40 I 1 have not therefore been met.

c) Legitimation effect of subsection I

124Judicial rulings on section 16 I are concerned primarily with questions relating to the list of shareholders, in particular with who is permitted to submit the list and the scope which the list may have, and also with regard to the relationship between the authorisation under substantive law and the formal authorisation pursuant to I 1.

aa) Formalities of the list of shareholders:
(1)

125BGH, ruling of 20.09.2011 – II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=2cc7d993c66ed5578940a26ef6e8bbd0&nr=58010&pos=0&anz=1, BGHZ 191, 84 = NZG 2011, 1268 = DB 2011, 2832 = GmbHR 2011, 1269 = MittBayNot 2012, 149

The court of registration has the right to reject a list of shareholders which, in deviation from section 40 I 1, II 1 GmbHG, does not show any changes in the persons identified as shareholders or in the extent of their participation but merely gives advance notification of such changes. In the event of acquisition subject to a condition precedent, it is not possible to submit the list until the condition has been satisfied (margin no. 74).

Pursuant to sec. 16 III GmbHG, the list of shareholders is the point of reference for acquisition of a share in good faith. The effects of the ostensible existence of a legal situation (Rechtsscheinwirkung) of sec. 16 III can only go as far as the list of shareholders, which constitutes the basis for the ostensible existence of a legal situation, can give rise to the legitimate expectations that are authoritative for legal relations. However, the list of shareholders is not suited for creating the legal appearance that the owner of the share recorded in the list has not already disposed of it subject to a condition precedent. The list of shareholders does not provide the basis for legitimate expectations that the share is free of encumbrances or that the shareholder is not restricted in his power to dispose of the share by the articles of association. As regards the restriction of the power of disposition in the event of acquisition subject to a condition precedent in accordance with section 161 I BGB (margin no. 81) the same applies.

Although it is only the custodian, the court of registration is allowed to examine the list submitted, certainly in terms of whether it meets the requirements of section 40 I 1 GmbHG. In this vein, OLG Munich already, decision of 08.09.2009, 31 Wx 82/09, NJW 2010, 305. The court of registration therefore has the right to reject a list of shareholders, which, in breach of sec. 40 I 1, II 1 GmbHG, does not evidence any changes to the persons who are shareholders or to the scope of their holding, but merely gives advance notification thereof. It is not at the discretion of the parties involved to supplement the content of the list of shareholders submitted by them in deviation from the requirements of statute by including additional details which strike them as being pertinent. This is to be distinguished from a case whereby a change to be included in the list of shareholders within the meaning of sec. 40 I has already come to pass, but the law does not make a mandatory stipulation as to how this change is to be presented in the list of shareholders. For this reason there can be no criticism, for example, of a renumbering of transferred shares classifying the origin thereof by striking though the sequential numbers applying hitherto and providing evidence of the change under the new sequential numbers, if this results in a sufficiently clear allocation of the shares being guaranteed (margin no. 73).

(2)

BGH, ruling of 24.02.2015 – II ZB 17/14, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=f1b5105bc6a572341a0cde224f8500c0&nr=70645&pos=0&anz=1, NJW 2015, 1303

126The court of registration may refuse to record a list of shareholders endorsed with a statement of the executors. A statement of the executors is not included in the details specified for inclusion in the list of shareholders. Under sec. 40 I 1 GmbHG, following a change in the persons who are shareholders or in the extent of their holding, a list of shareholders has to be submitted showing the family name, first name, date of birth and place of residence of the latter and the nominal amounts and sequential numbers of the shares subscribed to by each of the shareholders. After an inheritance, although there is a change in the persons who are shareholders, no inclusion of a statement of the executors is provided for in the new list of shareholders to be submitted by reason of the inheritance. It is not at the discretion of the persons affected to arbitrarily add to the content of the list of shareholders they submit, in deviation from the statutory requirements, by including additional components which they consider to be appropriate. This runs counter to the principle of clarity for the register which also applies accordingly to the list of shareholders. If additions to the list of shareholders are allowed at the discretion of the parties, the risk of lack of understandability and clarity is greater than with entries in the commercial register, because this list is not – unlike the commercial register – amended by a governmental agency in accordance with the rules laid down in the Commercial Register Ordinance, but is a list submitted by notaries and managing directors with a structure which is neither stipulated in detail nor does it have to be verified (margin no. 72). The fact that, in the event of an inheritance, there is no doubt as to a change in the persons who are shareholders in relation to the company does not establish the need for inclusion of a statement of the executors. The executor is not reliant on legitimation through the list of shareholders. The heir is the owner of the share even in the event of permanent executorship (Dauertestamentsvollstreckung). The heir is also the holder the right to vote; it is merely exercising the right to vote that can be the responsibility of the official appointed (Amtswalter). BGH, judgement of 13.05.2014 – II ZR 250/12, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=30707e07158863bc22923bb69eed2118&nr=68320&pos=0&anz=1, BGHZ 201, 216 = GmbHR 2014, 863. The appointment of officials is made by reference to the authority to exercise the right and not to the status of shareholder. In order to exercise the voting right it suffices for the official to have a certificate as executor as proof of his legitimation vis-à-vis the company. Nor is there any need to have a statement of the executors included in the list in order to prevent acquisition in good faith of the share from the heirs (margin no. 76 und 77). In this vein OLG Munich already, decision of 15.11.2011 – 31 Wx 274/11, ZIP 2012, 1669 (1670) = GmbHR 2012, 39.

(3)

BGH, judgment of 17.12.2013 – II ZR 21/12, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=c6c4651c33e26e200b18a5c5b2810bce&nr=66543&pos=0&anz=1, ZIP 2014, 216 = NZG 2014, 184

127The managing director is authorised to correct an incorrect list of shareholders submitted by a notary pursuant to sec. 40 II 1 GmbHG. Under sec. 40 II 1, the notary is placed in the stead of the managing director who, pursuant to sec. 40 I GmbHG is, in principle, responsible for submitting the list, but this provision fails to regulate the correction thereof. If the correction also had to be arranged via the notary who submitted the incorrect list, this would constitute an unnecessary and time-consuming detour, especially since the company cannot easily compel an unwilling notary to submit a corrected list (margin no. 96). Prior to submitting a corrected list of shareholders, the managing director must give the person affected the opportunity to make comments. If the person affected objects to the correction, this does nothing to change the authorisation of the managing director to ensure that the list of shareholders is corrected, as long as the person affected does not obtain an interim order enjoining the managing director from submitting a changed list of shareholders (margin no. 99). The person affected can protect himself against a possible disposition of the share by the shareholder recorded in the list of shareholders by means of an objection or by applying for an interim order provisionally enjoining the managing director from submitting the amended list of shareholders (margin no. 102).

(4)

BGH, ruling of 17.12.2013 – II ZB 6/13, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=81f067eef85431ae6880d81b0efe2fe5&nr=66653&pos=0&anz=1, BGHZ 199, 270 (273) = GmbHR 2014, 248 = ZIP 2014, 317

128The court of registration is not authorised to examine whether a notary resident abroad or at least a notary having his domicile in Basle/Switzerland is permitted to submit a list of shareholders. A list of shareholders has to be recorded in the commercial register if changes in the persons who are shareholders or in the scope of their holding have already come to pass, but also if the amended entries in the list of shareholders submitted originate from the managing director or from the notary who collaborated in the changes. In this respect the formal examination right of the court of registration is restricted, however, to establishing whether the person who submits an amended list of shareholders for recording in the commercial register is a person named in sec. 40 I and II GmbHG, for instance also the notary, who collaborated in the changes corresponding to the changed entries (margin no. 71, 72). In the registration process it is not easily possible to resolve any doubts as to whether the managing director or notary is authorised to submit the list he signed in a specific case. A complaint regarding a list submitted by a notary abroad would therefore only be covered by the formal examination right of the court of registration if a notary domiciled abroad, or certainly a notary domiciled in Basle/Switzerland, were not entitled to submit a list of shareholders under any circumstances and he would therefore be on a par with a third party whose lack of authorisation could certainly be established by the court of registration. This is not the case, since the notarial certification required under the GmbHG can be undertaken by a notary abroad, provided that the foreign notarial certification is equivalent to the German notarial certification. With regard to the question to be resolved it is of no relevance either whether the notary abroad who furnished the share transfer with notarial certification is obliged to submit the list pursuant to sec. 40 II, or whether this obligation is only incumbent upon German notaries.

(5)

OLG Munich, judgment of 29.07.2010 – 23 U 1997/10, GmbHR 2011, 429 (430) = ZIP 2011, 570

129The shareholder of a GmbH has no claim against the managing director for submission of a list of shareholders with specific content. Such a claim for correction is only conceivable in relation to the company. Differences of opinion on managing director issues are to be resolved between the shareholder and the legal entity.

(6)

OLG Brandenburg, decision of 12.12.2013 – 7 W 72/12, NZG 2013, 507 (508) = GmbHR 2013, 309

130Action to enforce submission of a list of shareholders of a GmbH to the commercial register must be taken against the managing director and not against the company, as this is a highly personal obligation of the managing director. A notary involved in a share transfer subject to a condition precedent, who does not, however, have to monitor satisfaction of the successive condition, is not obliged to submit the amended list of shareholders after satisfaction of the condition precedent on his own initiative. This obligation is incumbent on the managing director. In deviation from the judgment of the OLG Munich presented above, the OLG Brandenburg assumes, based on the claim for damages against the managing director pursuant to sec. 40 III GmbHG, that the shareholder has a direct claim for performance with respect to the managing director. Considering the highly personal obligation of the managing director, the claim for performance can also only be brought against the managing director himself and not against the GmbH. The decision is not yet final and non-appealable.

bb) Relationship between the presumption of conformity of subsec. I and the legal position under substantive law
(1)

OLG Bremen, judgment of 21.10.2011 – 2 U 43/11, GmbHR 2012, 687 (688) = NJW-Spezial 2012, 432 = GmbH-StB 2012, 176

131Resolutions adopted by a meeting of shareholders of a GmbH, also including, for example, a resolution to redeem a share affecting persons who are shown by the list of shareholders not to have been shareholders at the time of the resolution, are void and ineffective from the very outset. A claim can be brought against this by the person affected thereby by taking general action for acknowledgement in accordance with sec. 256 ZPO.

132If an agreement on the sale of a GmbH share has been contested, then the civil law rules governing nullity and avoidance do not lead to a situation whereby the shareholders are retroactively reinstated in their former legal positions in relation to the company. The provision of sec. 16 I rather provides that, notwithstanding the true legal position, the company has the right and the obligation to refer to the content of the list of shareholders, without evidence to the contrary being admissible in this respect. The company may only treat that person as shareholder who is entered in the list of shareholders; no reliance may be made on subjective moments, however, i.e. not even on whether the company had positive knowledge of the incorrect nature of the list.

(2)

OLG Zweibrücken, decision of 15.12.2011 – 3 W 144/11, GmbHR 2012, 689 = NZG 2012, 471

133The consequences resulting from sec. 16 I GmbHG under procedural law apply to all shareholder rights and obligations, including, in particular, the rights of the new shareholder to collaborate in the company’s decision-making process. Although, under substantive law, the new shareholder already owned the share that the old shareholders were resolving to divide, as the new list of shareholders had not yet been submitted to the commercial register and was therefore not yet recorded, it was possible for a meeting of shareholders to be held in the absence of the new shareholder and for resolutions to be effectively adopted by the old shareholders.

(3)

BGH, ruling of 17.07.2012 – II ZR 216/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=0de82d3dd8c8b05962e382adb64774ec&nr=62065&pos=0&anz=1, GmbHR 2012, 1303 (1304) = ZIP 2013, 117

134Under the old version of the law, a person not covered by the fiction of sec. 16 I GmbHG (old version) already had no right to take action aimed at having the shareholder resolutions declared void or at having a positive acknowledgement decision. This applies all the more since the new version of sec. 16 I GmbHG. The OLG Hamm, judgment of 16.04.2014 – 8 U 82/13, NZG 2014, 783 (784) = GmbHR 2014, 935 = ZIP 2014, 1479, deals with the right to take action for acknowledgement of the status of shareholder; this is pending at the BGH as an appeal on a point of law under no. II ZR 184/14.

(4)

BGH, judgment of 27.01.2015 – KZR 90/13, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=2df958b251c268a635ebb4fe60e8900f&nr=70580&pos=0&anz=1, NZG 2015, 478 (479, 480)

135The nullity of a share sale and transfer agreement under antitrust law pursuant to sec. 134 BGB and sec. 1 Act against Restraints of Competition (GWB) does not counter the assumption that a shareholder is deemed to be the acquirer of the share in relation to the company and thus as shareholder under the old and new versions of sec. 16 I GmbHG. The BGH (ibid.), at margin no. 18, undertakes a close examination of literature with regard to the question of whether sec. 16 I also intervenes if the nullity of the transfer of a share pursuant to sec. 134 BGB is based on a violation of sec. 1 GWB. Overall the BGH concurs with the prevailing opinion of the time. The BGH continues its case law on the old law, according to which the defective accession to a GmbH is not to be judged in accordance with the principles of the defective company (fehlerhafte Gesellschaft) because irrespective of the true legal situation, pursuant to sec. 16 I the company was able to and had to treat anyone as a shareholder whose acquisition of a share was covered by the irrefutable assumption. Even if the objects of the company aimed at a violation of the cartel prohibition, there is no need for the nullity of the accession to occur by law (margin no. 87). Payments made to the company or to co-shareholders by such a bogus shareholder are not therefore made without any legal ground so that claims based on unjust enrichment are excluded between the bogus acquirer who made the payments and the respective beneficiaries (margin no. 92).

d) Questions of liability pursuant to subection II

OLG Cologne, judgment of 31.03.2011 – 18 U 171/10, NZI 2011, 376 = BeckRS 2011, 08127

136The OLG Cologne confirms the liability of the acquirer pursuant to sec. 16 II also with respect to repayment claims under sec. 31 I GmbHG. The court does not consider this claim to constitute a personal claim which sec. 16 II does not apply to, but is of the opinion that capital conservation is the opposite side of capital provision. It therefore appears to be consistent to also apply sec. 16 II to those obligations which – like sec. 31 GmbHG – serve to maintain capital. The default liability of the co-shareholders pursuant to sec. 31 III GmbHG supports this having the characteristic of an obligation to contribute and is against its being a personal debt.

e) Purchase in good faith pursuant to subsection III

137At the forefront of judicial decisions are questions relating to the opposition and to the scope of submissions in actions applying for an interim order to prevent acquisition in good faith.

(1)

OLG Munich, decision of 11.03.2011 – 31 Wx 162/10, NZG 2011, 473 (474) = DNotI-Report 2011, 54

138Since, when a share is acquired in a GmbH, it is only good faith in the seller’s capacity as owner of the share that is protected but not in his unrestricted authority to dispose of the share, if a sale is subject to a condition precedent there is no interim acquisition in good faith by a third party. This is why entering an objection to the list of shareholders submitted to the commercial register is neither necessary nor admissible in such cases.

(2)

KG, decision of 01.04.2010 – 2 W 36/10, ZIP 2010, 2047 (2050) = BeckKS 2010, 13125

139Pursuant to sec. 16 III 5 GmbHG, the existence of a ground for an order pursuant to sec. 935 and 940 ZPO has to be assumed. The Kammergericht considers it to be irrelevant whether this assumption is irrefutable. In this specific case the Kammergericht has, however, decided that the assumption of the ground for an order in the specific case was not refuted by the behaviour of the person seeking the order himself. It does not follow from sec. 16 III 2 that up until the expiry of the three year period, the statutory presumption of urgency of sec. 16 III 5 GmbHG is refuted by law, as it were, for instance because up until this time the affected party did not even have to fear the loss of his share. This is because the consequence of such an opinion would be that issuing an interim order in the first three years after submission of the list of shareholders would be generally excluded. According to the Kammergericht, it has to be assumed, however, that such a severe restriction of an interim order explicitly provided for in sec. 16 III 4 would have been expressed in the wording of this provision or at least in the statutory materials, and this is not the case.

(3)

OLG Nuremberg, decision of 19.08.2014 – 12 W 1568/14, ZIP 2014, 1881

140An interim order aimed at entering an objection pursuant to sec. 16 III 3 alternative 2 GmbHG must not always be sought if the shareholder establishes that an incorrect list of shareholders has been submitted to the commercial register. To this extent it suffices if there is an abstract risk of an acquisition in good faith based on the incorrect nature of the list of shareholders only after expiry of the 3 year period of sec. 16 III 2 GmbHG. If the 3 year period of this provision has not yet expired, however, a person seeking an interim order aiming at entering an objection is required to present a threat to his rights which makes it appear necessary for an interim order to be issued prior to expiry of the three year period already. The OLG Nuremberg assumes that the three year period is also intended to serve the purpose of enabling the shareholder to reach an agreement with the company, the managing directors, the co-shareholders or the putative shareholder to the effect that the commercial register correctly states the shareholder relationship again. If the claimant still has sufficient time to obtain clarification in ordinary procedure, then the matter has no urgency. If the judicial action should take such a long time that the three year period will soon have expired, the claimant would then be at liberty to apply for an interim order at such time. The urgency would then derive from the fact that the three year period was about to expire.

(4)

OLG Thüringen, judgment of 09.10.2013 – 2 U 678/12, GmbHR 2013, 1259 with note by Heinze

141Contrary to the opinion of the OLG Brandenburg presented above (margin no. 130), the OLG Thuringia assumes that in legal action taken to have an amendment to the list of shareholders it is the company which is the correct defendant and not the managing director. This legal opinion had already been stated by the OLG Thuringia in the procedure for an interim order (judgment of 05.12.2012 – 2 U 557/12, GmbHR 2013, 145, commentary Peetz). The OLG Thuringia is of the opinion that prevailing opinion in literature supports its legal opinion and not that of the OLG Brandenburg. This was the reason for not allowing an appeal on a point of law.

(5)

KG, decision of 15.07.2013 – 12 W 30/12, GmbHR 2013, 762 (762) = DB 2013, 1477 = ZIP 2013, 1176 = DB 2013, 1748

142If an objection has been entered against an entry in the list of shareholders, then the only conceivable way of reversing it is to cancel the objection as an “actus contrarius” to the possibility of entering an objection of sec. 16 III 4 GmbHG. Cancellation of the objection is not explicitly covered by sec. 16 III. Cancellation of the objection as an “actus contrarius” to the possibility of entering an objection of sec. 16 III 4 GmbHG is admissible, however. The precondition is, by analogous application of the legal concept of sec. 19 German Land Register Code (Grundbuchordnung – GBO), for the entitled person to have consented to the cancellation of the objection entered in his favour. Submitting a new list of shareholders with respect to which no objection is entered is not conceivable, however, since the requirements of sec. 40 I 1 GmbHG have not been met, because the list was and remains correct in the specific case so that the unchanged list was therefore correct and no change had come to pass.

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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