barbara mayer gesellschaftsrecht 5.jpgtheresa ohnemus gesellschaftsrecht 1.jpg

GmbH law: The new shareholder list regulation

On July 1, 2018, the Regulation on the Structure of the List of Shareholders (Gesellschafterlistenverordnung - GesLV) came into force. The aim is to standardise the content and structure of the lists of shareholders of a limited liability company (GmbH) and to make it easier to identify the beneficial owners of a GmbH.

In contrast to public limited companies, with GmbHs it is deposited in the commercial register and thus publicly visible who is a shareholder. The list of shareholders is the connecting factor and legal certificate carrier for the acquisition of GmbH shares in good faith. According to Section 16 of the German limited liability company act (GmbHG), only those persons who are entered as such in the list of shareholders deposited with the commercial register are deemed to be holders of a share in the company.

In addition, the list of shareholders is important in relation to the transparency register. Legal entities and registered partnerships are obliged under Section 19 of the Money Laundering Act (GwG) to provide information on their beneficial owners for the Transparency Register, unless the mandatory information on the beneficial owner is already provided in the list of shareholders: First and last name, date of birth, place of residence and type and extent of economic interest. This means that a complete and up-to-date list of shareholders can replace a corresponding averaging of the transparency register.

The new regulations of the GesLV in detail:

  • Business shares are to be numbered consecutively and in clear assignment to the partners with whole Arabic numbers (e.g. 1, 2, 3, or 1-3) or if necessary with whole Arabic numbers in decimal structure, so-called section numbers (e.g. 1.1, 1.2).
  • Structuring with the aid of Roman numerals, decimal numbers or letters is not permitted.
  • According to Section 1 para. 2 GesLV, a number assigned once may not be assigned again (so-called numbering continuity).
  • However, if the list of shareholders is unclear due to the previous numbering, it may be completely renumbered in an adjustment list, Section 1 para. 4 GesLV.
  •  According to Section 3 GesLV, previous numbers and details are omitted if there is a change which has led to the allocation of a new number. Obsolete information must therefore be completely removed and not only marked as having been deleted.
  •  In a new column of changes according to Section 2 GesLV, it is listed what has changed in comparison to the last list of shareholders submitted to the Commercial Register. This may make it necessary to submit an intermediate list, for example if shares are divided or merged in advance in the course of a share transfer.
  • In the list of shareholders, the percentages of each shareholder's shareholding must (already) be stated. It is now clarified that the percentages may either be rounded to one decimal place or, without rounding, a reproduction may be interrupted after the first decimal place (Section 4 GesLV). The same principle must be applied within the list of shareholders. The sum of the percentages does not have to be 100%. A rounding to 0.0 %, 25.0 % or 50.0 % is inadmissible, as these are relevant thresholds for determining beneficial ownership or control under the Money Laundering Act. Further decimal places must be added here.
  • It is now expressly permissible to label micro holdings of less than 1 % as such, for example with the indication < 1 %. This had still been rejected by the Higher Regional Court Nuremberg (decision of 23.11.2017 - 12 W 1866/17).
  • It is always inadmissible to indicate participation in breaches.

Despite these detailed regulations, the design of the list of shareholders is still left in some respects to the managing director or notary. In particular, the total scope of a shareholder's participation can be inserted either as a further column of the table or as a subsequent overview.

What is to be done? First of all nothing at all. No GmbH has to correct its shareholder lists submitted so far. The legal changes are to be considered only if due to a change in accordance with Section 40 exp. 1 GmbHG a new list of shareholders is to be submitted. And: Due to the large number of items to be indicated and the design possibilities, the list of shareholders should always be adapted to the individual case.

1:1. This is how we work together. You decide upon a competent partner; he/she will then remain your point of contact. > more