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Change of the managing director – Problems with the commercial register

The dismissal of a managing director of a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) needs to be registered in the commercial register. If however the commercial register refuses such registration, the dismissed managing director himself generally is not entitled to file an appeal against this decision – and therefore has no possibility to ensure his deregistration from the commercial register. This was ruled by the Brandenburg Higher Regional Court (Oberlandesgericht, OLG) as of January 4, 2021 (Ref. no. 7 W 97/20).

Background: Change of managing director at a limited liability company

The case decided by the Brandenburg Higher Regional Court was based on a typical constellation of a change of the managing directors. The shareholders of a GmbH had resolved to dismiss the previous managing director and to appoint a new managing director. The newly appointed managing director filed the change for entry in the commercial register, but this application was rejected by the commercial register. Against this decision, the dismissed managing director lodged an appeal which the Brandenburg Higher Regional Court which was rejected due to a lack of the right to appeal. The court made it clear that only persons that filed or theoretically could have filed the application for registration are entitled to file an appeal against decisions of the commercial court in this regard. Respectively, as a dismissed managing director generally is not authorized to file the application for his own deregistration, he is also not authorized to file a subsequent appeal.

Practical advice: Carefully prepare the change of managing director

Generally, the appointment and dismissal of managing directors becomes effective irrespective of their entry in the commercial register. The registration is only declaratory and no requirement for the appointment or dismissal becoming effective. Nevertheless, there is usually an interest in ensuring that changes of managing directors are registered in the commercial register as soon as possible so that the commercial register does not contain outdated information on the managing directors.

Only the appointed managing directors are authorized to file for registrations with the commercial register. As the decision of the Brandenburg Higher Regional Court shows, this may lead to problems for managing directors that have been dismissed or that have resigned. If their appointment ends with immediate effect after the shareholders’ decision, they are not obliged to file for registration of their dismissal in the commercial register themselves. Instead, they need to rely on other / new managing directors to make this registration and do not even have the right to appeal against rejections of the commercial register. If the managing director wants to be deleted from the commercial register as quickly as possible this situation and the dependence on other managing directors is often unsatisfactory.   

To avoid such complications, the resignation or dismissal of a managing director can be conditioned upon the registration of this change in the commercial register. In this way, the respective managing director can file his resignation with the commercial register himself and - if necessary – also appeal against decisions of the commercial register. He thus has much better control over the registration process with the commercial register. In the case of resignations of the managing director himself and terminations by mutual consent, such conditions precedent therefore often make sense.

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