The shareholders‘ list of a limited liability company - a declaration of knowledge

The list of shareholders of a German limited liability company is not a declaration of intent, but a declaration of knowledge. The submission of such list to the registry court is an act  not allowing for representation by a third party.

Facts

The Brandenburg Higher Regional Court (Oberlandesgericht, "OLG") had to decide the following case: In the course of the enforcement of a titled claim to submit a list of shareholders of a limited liability company (Gesellschaft mit beschränkter Haftung, "GmbH") to the competent registry court, the creditor of the GmbH requested authorization to submit the list of shareholders at the expense of the GmbH.

This authorization was not granted to the creditor in the first instance. The creditor filed an appeal against this decision.

The decision of the OLG Brandenburg of February 23, 2022, case no. 7 W 21/22

The appeal was not successful. This OLG confirmed that the requested authorization to submit the list of shareholders could not be granted to the creditor under art. 887 (1) of the German Code of Civil Procedure (ZPO). The submission of the list of shareholders of the GmbH is neither a declaration of intent, which shall be deemed to have been made as soon as the judgment has attained legal force within the meaning of art. 894 (1) ZPO, nor an act allowing for representation by a third party. The claim that the debtor should submit a list of shareholders to the registry court must be enforced as an act not allowing for representation by a thid party under art. 888 (1) ZPO. The list of shareholders merely represents a declaration of knowledge, because it 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 is an act, which can only be taken by the persons obligated under art. 40 (1) sentence 1, (2) sentence 1 of the German Limited Liability Companies Act (GmbHG) and therefore, in the present case, by the managing director of the GmbH.

Comment

The classification of the list of shareholders of a GmbH as a declaration of knowledge to be made personally by the managing director (or by the notary) is convincing.

For shareholders of a GmbH, the list of shareholders plays a important role in practice. Only those (natural or legal) persons who are listed on the list of shareholders are deemed to be shareholders in relation to the GmbH and can therefore, for example, exercise their voting rights. This even applies if formal legal position deviates from the substantive legal position, i.e. in case that the list of shareholders is incorrect. If necessary, the affected shareholders can defend themselves against a newly submitted "incorrect" list of shareholders by way of interim legal protection. This is of particular relevance in the context of shareholder disputes.

Irrespective of this, strict formal requirements have to be observed when drafting a list of shareholders. Mistakes in this context may cause a risk that the list of shareholders is rejected by the register court so that – owing to the circumstances - time-critical processes could be considerably delayed. Against this background, managing directors should, in case of doubt, seek legal advice.