No submission of a new list of shareholders by the insufficiently authorized managing director

A new list of shareholders of a company must be signed and submitted by the managing directors registered in the Commercial Register and in a number authorized to represent the company. Otherwise, the register court may reject the list of shareholders.

Facts

The case decided by the Berlin Appellate Court (Kammergericht - "KG") concerned the submission of a new list of shareholders for a limited liability company (Gesellschaft mit beschränkter Haftung (GmbH)). This GmbH had three managing directors and the provisions for representation that only two managing directors together can represent the company. In June 2020, two managing directors ("A" & "B“) requested the registration of the removal of the third managing director ("C") in the commercial register. This change was not registered in the commercial register until the end of September 2021. In the meantime, the third managing director C submitted a new list of shareholders which only (!) he signed to the commercial register. This new shareholder list shows him as the sole shareholder of the company. In C's opinion, he had dismissed the other two managing directors A and B after acquiring the shares and appointed himself sole managing director. However, there was no corresponding registration in the commercial register (yet) that C was the sole managing director of the company. The register court rejected the entry of the new list of shareholders. Managing director C filed an appeal against this decision.

The decision of KG Berlin of October 12, 2022 (Case No. 22 W 43/22)

The appeal was unsuccessful. In the opinion of KG Berlin, the requirements for a proper list of shareholders were not met. This is because such a list must - in addition to the required information - be signed by the managing directors in a sufficient number according to the commercial register for the authority of representation of the company. The requirement that the person who signs the list of shareholders must also be identified by the commercial register as the legitimate managing director must be adhered to. Since in the present case, however, the power of representation of only two managing directors acting together was entered in the Commercial Register, the sole managing director C was not entitled to sign the list of shareholders on his own. The fact that C could possibly have appointed a new managing director as the new sole shareholder was not sufficient.

Practical advice

The Commercial Register has significant importance for legal and economic transactions. Because important information regarding the economic actors is published via this register.

Therefore, various information must be registered by a company when it is founded. This includes (i) the name of the company, (ii) the legal form, (iii) the object of the company, (iv) the registered office, (v) the business address, (vi) the share capital, (vii) the representation relationships (management and procuration) and also (viii) the shareholders. Therefore, changes that concern the company (e.g., change of managing director, limitation/extension of powers of representation or granting/revocation of procuration) must be applied for registration in the commercial register. If the changes are not registered in the commercial register, this is to the disadvantage of the company. Because the public may rely on the content entered in the commercial register.

Also in relation to the company, only the persons mentioned on the current published list of shareholders are deemed to be shareholders. Only the shareholders named therein are entitled for profit distributions, resolutions and other membership rights. The list of shareholders has a legitimizing effect. Therefore, the managing directors and the shareholders themselves should always ensure that the list of shareholders is up-to-date and correct and should report any changes to the commercial register immediately.

The list of shareholders must contain information on

• the name of the shareholder,
• the date of birth (in case of a natural person) or the legal form,
• the place of residence (in the case of a natural person) or the registered office and the commercial register number,
• the share held (serial number, nominal amount and percentage shareholding),
• the total shareholding of the shareholder in the company, and
• changes in the person of the shareholder (e.g. "transfer by share transfer agreement")

As confirmed by the decision of the KG Berlin, the list of shareholders must be signed by the managing directors shown in the commercial register and with the number authorized to represent the company.

The KG Berlin has once again confirmed that, in principle, only a limited formal examination is carried out by the Registry Court when a list of shareholders is applied. If, for example, persons acquire shares in a company (share deal), the register court only checks whether the persons shown in the new list of shareholders are parties to the purchase agreement, but the content of the agreement is not checked.

 However, in the recent past it has become apparent that some registry courts are closely examining the correctness and completeness of the entries in the commercial register more strictly. In some cases, they used formalistic grounds for rejection. This delays the registration process and means that changes decided by the company cannot be implemented for a while. Such delays are frustrating but can be avoided by a legally correct registration application.