Legitimate interest in obtaining a court declaration of status as a shareholder in a limited liability company, despite being listed in the shareholder register

A shareholder of a limited liability company (GmbH) may seek a court declaration of his or her shareholder status. This applies even if the shareholder is already listed in the shareholder register maintained in the Commercial Register. The Federal Court of Justice clarified this (judgment of April 21, 2026, II ZR 50/25).

Facts of the case

The Federal Court of Justice (BGH) had to rule on the status of a GmbH shareholder. The shareholder had acquired a total of 75% of the shares in a GmbH through a share purchase and assignment agreement (share deal). However, the validity of the agreement was disputed between her and the GmbH. In the first list of shareholders filed with the Commercial Register, the purchaser was recorded as shareholder with a total participation of 75%. Subsequently, however, further, deviating lists of shareholders were submitted which no longer showed her as shareholder. In the most recent list of shareholders, again filed by a notary, she was listed once more as shareholder of the GmbH.

The buyer then brought an action seeking a declaration that she is a shareholder of the GmbH.

The decision of the BGH, judgment of April 21, 2026 – II ZR 50/25

The BGH held that a shareholder who is already entered in the list of shareholders may nonetheless seek judicial determination of his or her substantive shareholder status.

In the BGH’s view, a shareholder’s legitimate interest in obtaining a positive declaratory judgment regarding his or her shareholder status in the GmbH does not cease to exist merely because he or she is listed in the list of shareholders entered in the Commercial Register. While the entry has a formal legitimating effect vis-à-vis the company and third parties, it does not conclusively establish the substantive shareholder status. In particular, where the shareholder’s legal status is threatened by a present danger or uncertainty—for example because new, conflicting lists of shareholders have been filed —the shareholder may have a legitimate interest in clarification. Thus, a judicial determination of shareholder status also serves to protect against the company submitting a new, divergent list of shareholders on which other persons are named and which these persons may rely upon.

In the opinion of the BGH, a justifiable interest in a declaratory judgment is lacking only where a judicial determination clearly cannot provide any additional protection because the shareholder status is undisputed and secure in every respect.

Practical guidance

With this decision, the BGH strengthens the position of GmbH shareholders in disputed ownership relationships and clarifies a previously controversial issue regarding disputes over membership: Despite the formal evidentiary and legitimating effect of the list of shareholders (Section 16(1), first sentence, of the German Limited Liability Companies Act (GmbHG)), a shareholder may seek a court order bindingly establishing his or her status as a shareholder vis-à-vis the company.

The Commercial Register is of considerable importance for legal and commercial transactions. This is because it makes essential information about business entities publicly available (e.g., company name, legal form, corporate purpose, registered office, domestic business address, and representation arrangements (management and power of attorney)).

The list of shareholders, which must also be filed with the Commercial Register, serves to disclose the ownership structure. It is initially drawn up as a list of founders and must then be updated immediately whenever there is a change in the identity of the shareholders. The list of shareholders contains information regarding

• the name or business name of the shareholder,
• the date of birth (for a natural person) or the legal form,
• the place of residence (for a natural person) or the registered office and commercial register number,
• the share held (serial number, nominal amount and percentage of participation),
• the shareholder’s total participation in the company and
• changes in the identity of the shareholder (e.g., “transfer by share transfer agreement”).

Changes must be submitted along with a new list of shareholders.

In this regard, the shareholders, as well as the company itself (represented by the managing director), should always ensure that the list of shareholders is up-to-date and accurate as only those persons listed in the current list of shareholders are considered shareholders in relation to the company (so-called “legitimation effect”). Only the persons named therein may exercise the property, management, control, and minority rights arising from their status as shareholders.

With its decision, the BGH has strengthened the possibility of obtaining a judicial determination of shareholder status. This can be a crucial tool where a shareholder status is disputed, since shareholder lists resubmitted retroactively by the managing director can create an incorrect formal situation which is often difficult to correct and can cause significant, including financial, disadvantages in the meantime. To prevent the legal position of the rightful shareholder from being exposed to risks or uncertainties, it should always be examined whether court action has a realistic prospect of success. A successful judgment prevents the company and the other shareholders from using a new list of shareholders to establish a conflicting formal legal situation. Bringing an action may therefore be advisable even if the shareholder is already entered in a list of shareholders, but there are discrepancies regarding his or her entitlement.