No deletion of address data in the list of shareholders

The list of shareholders of a limited liability company ("GmbH"), which is publicly filed in the commercial register, shows the shareholders at a glance. What must be entered in the list of shareholders is regulated by law. Anyone who accidentally discloses too much information (e.g. their private address) has bad luck: as a ruling by the Munich Higher Regional Court shows, they cannot demand the deletion of this data from the list of shareholders.

Facts of the case

The decision of the Munich Higher Regional Court (OLG Munich) is based on the following facts: Following the transfer of a share in a GmbH, a new list of shareholders was deposited with the commercial register. It contained - in addition to the legally required information - the complete private addresses of the shareholders. This initially went unnoticed; it was only years later that the managing director of the GmbH applied for the addresses to be removed from the list of shareholders and submitted an updated version that only stated the place of residence. However, the registry court rejected the application.

Decision of the Higher Regional Court of Munich dated April 25, 2024 (Ref. 34 Wx 90/24)

The appeal filed against the decision of the registry court was unsuccessful. The OLG Munich confirmed that the registry court had rightly rejected the application to delete the street and house number by replacing the list of shareholders. The appellant correctly argued that the indication of the complete residential address in the list of shareholders is not required by law. However, a basis for a claim for the requested deletion of the data was not apparent. Public interests, in particular the continued transparency and evidence function, would stand in the way of deletion. The Commercial Register Ordinance also does not give rise to a claim for an exchange of the shareholder lists.

Practical note

The list of shareholders is not a formality, but legitimizes the shareholders towards the company and to some extent towards legal transactions. It is therefore of enormous practical importance, especially when exercising shareholder rights - which normally only those who are entered in the list of shareholders may exercise - and when selling shares - where entry in the list of shareholders enables an acquisition in good faith under certain conditions. For this reason, it is available to everyone free of charge in the electronic commercial register.

Section 40 of the German Limited Liability Companies Act (Gesetz über die Gesellschaft mit beschränkter Haftung - "GmbHG") stipulates what information must be included in the list of shareholders. Further details are regulated by a Shareholder List Ordinance. On this basis, the list of shareholders must include information on the individual shares as well as on the shareholders and their respective shareholdings. If changes occur in this respect, the list of shareholders must be updated immediately. In such cases, a new list of shareholders is submitted either by the managing director (e.g. in the event of a change in the name of a shareholder or redemption of shares) or by the notary if the latter was involved in the underlying change (e.g. in the event of share transfers or capital increases). The specific information to be provided in this regard is a regular issue in  court rulings.

If too much information is included in an excessive manner, there is no legal possibility of having the list of shareholders subsequently deleted from the commercial register or having the private data blacked out. The shareholders in the case decided by the Munich Higher Regional Court experienced this first-hand: Instead of (only) their place of residence, their complete private addresses were and remained publicly accessible. The decision therefore demonstrates once again that care must be taken when preparing a list of shareholders. This is because the free disclosure of private addresses to anyone, for example, is not only annoying, but also opens up the possibility of misuse (not only in the case of wealthy individuals whose personal data is disclosed).

Incidentally, similar problems can arise if the notary accidentally includes private data in commercial register applications (e.g. a change to the articles of association or changes to the managing directors), e.g. because the certification notes on the commercial register application are not blacked out or omitted. In these cases, however, the affected parties have a better chance of success because the Commercial Register Ordinance grants them the right to have the document replaced.