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The German commercial register

The commercial register contains a lot of publicly accessible information on companies and merchants. As a new decision of the German Federal Court of Justice (Bundesgerichtshof, BGH) shows that can be relevant not only in contractual relationships, but also in legal disputes.

The decision of the BGH of May 24, 2023 (Case No. VII ZB 69/21)

The case of the BGH concerned a limited liability company.  After it had obtained a positive judgement before court it was merged to another limited liability company. When the acquiring company applied to the competent Local Court to grant it an enforceable copy of the titles with a legal succession clause with reference to the merger, the Local Court rejected the application. The Local Court took the view that the merger and thus the legal succession of the acquiring company - although the GmbH had submitted an extract from the commercial register showing the same - was not sufficiently proven. The company filed an appeal on which at least the BGH had to decide. The BGH ruled in favour of the company and referred the case back to the Local Court for a new decision. According to the BGH, the commercial register, which is kept electronically on the Internet is a generally accessible source so that every court would have no difficulty in reconstructing the merger of legal entities from it. Further proof would not be necessary. Thus, in the specific case, the legal succession clause had also had to be granted.

Practical advice: Commercial register as reliable source of information

The decision of the BGH illustrates the particular importance of the commercial register as a public register. It provides information on the essential legal relationships of merchants and companies, such as the registered office, business address, object of the company, shareholders and persons authorized to represent the company. Since 1 August 2022, this information can be accessed and viewed electronically by anyone free of charge.

The commercial register serves not only to provide information, but also to protect legal transactions and third parties who wish to enter into business relations with a merchant or a company. For them, it may be important to obtain information about the identity, power of representation and liability of their business partners.

The publicity of the commercial register has two aspects: Firstly, it creates a presumption of the correctness and completeness of the registered facts. In other words, the facts entered in the commercial register are presumed to be correct. This applies even if they are actually incorrect - unless the third party is aware of the incorrectness of the registered fact. On the other hand, the commercial register protects good faith in the absence of facts that have not been entered or disclosed. Thus, if something is not entered in the commercial register that should be entered, the company cannot rely on this fact. Again, the exception applies that if the unregistered fact was known to the third party by other means, he is not entitled to protection in this case either.

Thus, the commercial register is not only a formal register, but an essential instrument for information and protection of legal transactions. The publicity of the commercial register has both legal and practical consequences for all parties involved.

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