The pitfalls of registering a GmbH in the commercial register

When registering a newly founded limited liability company ("GmbH"), the managing director must affirm that there are no circumstances that would disqualify him from acting as managing director. This assurance must be specific and may not contain any legal assessments of the managing director's own. This was clarified by the decision of the Higher Regional Court of Celle (Oberlandesgericht, "OLG").

Facts

The decision of the OLG is based on the following facts: The GmbH in question is seeking registration in the commercial register. The registry court initially refused the registration and issued an interim order because the managing director's assurance did not meet the statutory requirements. In the opinion of the registry court, the managing director's assurance that he was not subject to a professional or trade ban was not sufficiently specific, thus making it impossible for the registry court to review it. The assurance of the managing director read as follows:

"There are no circumstances on the basis of which I would be excluded from the office as managing director pursuant to Sec. 6 (2) Sentence 2 and 3 of the Limited Liability Companies Act ("GmbHG"): Managing director cannot be anyone who ...

(b) on the basis of a court judgment or an enforceable decision of an administrative authority may not exercise a profession, a branch of a profession, a trade or a branch of a trade, provided that the object of the enterprise is wholly or partly the same as the object of the prohibition, ..."

The decision of the OLG Celle of March 20, 2023, file no. 9 W 24/23

The OLG upheld the registry court’s decision and ruled that the assurance of the managing director did not enable the registry court to conduct a review. This is because the assurance is limited to a reproduction of the legal text and does not contain any specific information on the managing director concerned. As a result, it remains unclear for the registry court whether the managing director concerned was not banned from the profession or trade at all or whether, according to the legal assessment of the managing director concerned, no ban on the profession or trade was issued in the area of the company's business purpose. However, the assurance of the managing director must refer to concrete facts and may not contain any legal assessment.

Practical advice

The decision of the OLG once again shows the pitfalls that can arise when registering a company in the commercial register. The documents for the formation of a company and its registration in the commercial register should therefore be prepared with the utmost care. After all, in most cases, it is important for all parties involved that the newly founded company is registered quickly in order to be able to commence the company's business activities. Only once the company has been registered in the commercial register can a liability risk of the acting persons be avoided and the regulations for limited liability of a GmbH take full effect.