New requirements for GmbH stockholder lists

Duty to state even the smallest percentage investments

Background

In Germany, GmbHs [the equivalent to a Ltd] have the duty to submit a list of all shareholders to the commercial register. This list is to be constantly updated in case of changes. Due to a change in the law, the percentage value of each share in the equity capital must now also be stated in this list.

The Munich OLG [Higher Regional Court] and the Nuremberg OLG subsequently had to decide whether the percentage investment values always have to be recorded exactly for each individual share in the GmbH, or not a lower limit / lump sum statement (e.g. “<1%”) for small shares is enough.

The decisions of the Munich OLG and Nuremberg OLG follow

In their decisions, both courts rejected such lower limits. The rejection was justified in that these lower limits are simply not stipulated in the act. It follows from the explanatory memorandum that the duty to state the percentage investments should serve to create transparency of the shareholder list.

Despite these clear decisions, the Nuremberg OLG shared the opinion in principle that the introduction of lower limits could be practical at least in such cases concerning the smallest investments. Such an approach is however unlawful until the statutory provision has been specified in this regard by a legislative decree.

Comment

The change in the law aimed to facilitate better recognizability of the material information regarding the investment structure of a GmbH. In this respect, the already existing disclosure requirements for GmbHs have been tightened once again.

It is currently not possible to introduce lower limits, but they do appear sensible. Often it will not matter whether a percentage investment of 0.004 % or “<1%” is stated in the case of a nominal amount of EUR 1.00 per stock (in the case of a GmbH with EUR 25,000 share capital).

However, as long as no corresponding specification of the legislative provision has been made, the exact values must continue to be provided.