Requirement of a domestic serviceable business address

When a company is formed, the court checks whether the domestic business address is a serviceable address - if this is not the case, it refuses to register the company.

Background

When a company is formed, the court checks whether all statutory registration requirements are met before registration as part of the so-called formation audit. In this context, proper registration includes, among other things, the specification of the domestic business address at which formal service have be possible. The Berlin District Court (KG Berlin) had to decide on a case in which the requesting company could not be served with the request for an advance on costs at the domestic business address stated in the application for initial registration in the commercial register. The court requested the submitting notary to file a change of the domestic business address or to submit an assurance that the domestic business address is a serviceable address. The requests remained unanswered. Subsequently, the court rejected the application for initial registration.

The decision of the KG Berlin of October 5, 2021 - 22 W 67/21

The court clarifies that the registration in the commercial register is not only to be rejected if the company is not properly established, but also if the application is made incorrectly. This was the case - the company lacked a domestic serviceable business address.

Comment

With its decision, the KG Berlin is in line with the case law of the highest courts. A company should not come into existence by registration in the commercial register if the court has justified doubts as to its proper formation on the basis of the documents submitted and the registration requirements are not met.

Therefore, the court is generally obliged to fully examine the prerequisites for registration within the scope of the formation examination. In this context, proper registration includes, among other things, the specification of a domestic serviceable business address. This is because the obligation to register the business address serves in particular to protect creditors. This ensures that creditors can find an address in the commercial register at which effective service on the company is reliably possible. This presupposes that service can be effected on the company at the designated location, for example because its business premises are located there. It may also be sufficient if a legal representative or an agent authorized to accept service lives there. When specifying and selecting the domestic business address, it should also be noted that it has to be located in Germany and contain the street, house number, postal code and city. A c/o address is also possible. As a rule, the business address will correspond to the location of the business premises, the head office or a permanent establishment. However, this is not mandatory. If the business address does not coincide with the location of the business premises, this must be stated separately in the application.

In order to establish a company properly and registrate it in the commercial register, it is advisable to have the formation process, including the preparation and review of the required documents, accompanied by experts. This avoids queries or even a rejection of the registration by the court.