The shareholders’ list of a limited liability company - declaration of knowledge and no act allowing for representation by a third party 

The list of shareholders of a limited liability company (GmbH) is a declaration of knowledge and its submission to the competent commercial register constitutes an act not allowing for representation by a third party. This was decided by the Higher Regional Court of Brandenburg.

Facts of the case

The Brandenburg Higher Regional Court (OLG) had to decide the following case: In the proceedings of enforcement of a titled claim to submit, to the competent registry court, an updated list of shareholders identifying the applicant as shareholder of the GmbH, the applicant requested authorization to himself submit the above-mentioned updated list of shareholders at the expense of the GmbH. The Potsdam Regional Court rejected this application.

The decision of the OLG Brandenburg of August 16, 2023 – case no. 7 W 89/23

The appeal filed by the applicant against this decision was not successful. According to the OLG the obligation to submit an (updated) list of can only be enforced shareholders pursuant to art. 888 of the German Code of Civil Procedure (ZPO) as an act not allowing for representation by a third party. According to the OLG the submission of the list of shareholders is an act that by its legal nature cannot be carried out by a third party (in this case: the applicant). It is on the contrary an obligation to be fulfilled personally by the managing director(s) of the GmbH or the notary involved. The OLG especially referred in its reasoning to its own decision of February 23, 2022 – case no. 7 W 21/22). In addition, the OLG stressed that no other result can be found, even on the basis of recent (German Federal Supreme Court) case law and the development of literature opinions.

Comment

In its decision of February 23, 2022, the OLG already categorized the list of shareholders as a declaration of knowledge, which merely contains a formalized report on a change that has taken place in the persons of the shareholders or their participation in the company. Such a declaration of knowledge - unlike a legal declaration of intent - can only be an act not allowing for representation by a third party.

Therefore, the following applies: The shareholder’s list of a GmbH as a declaration of knowledge can only be submitted to the commercial register in person by the GmbH’s managing director(s) or, in certain cases, by the notary. In procedural terms, this means that a corresponding claim can only be enforced by imposing a penalty payment or compulsory detention pursuant to art. 888 ZPO against the person obliged to submit the list and the applicant cannot submit the list himself as a substitute.

In practice, this can be problematic for a shareholder who is wrongly not included in the list of shareholders submitted to the commercial register. This is because even if the material legal situation differs from the formal legal situation, only the natural or legal persons listed in the list of shareholders are deemed to be shareholders in relation to the GmbH. This is of central importance for the exercise of shareholder rights, such as the voting rights or right to speak. It is thus all the more important for the individual GmbH shareholder to ensure that the list of shareholders is up to date at all times and, in the event of any discrepancies, to assert claims immediately and with the correct procedural options.