No transfer of registered office by mere registration of a limited liability company in Turkey

The mere entry of a German limited liability company ("GmbH") in the Turkish register as a limited sirketi (Turkish limited liability company) does not lead to an effective, form-changing transfer of the registered office.

Facts

The ruling of the Higher Regional Court (Oberlandesgericht – „OLG“) Zweibrücken was based on a dispute concerning the deletion of a GmbH from the commercial register. The shareholders of the GmbH decided to transfer the company's registered office to Turkey. The authorized notary then filed the transfer of the registered office. The registry court rejected this and pointed out that a domestic registered office was necessary.

Nevertheless, the limited liability company was entered in the Turkish commercial register as Limited Sirketi and a request for cancellation of the limited liability company was filed by the notary public. The notary justified this on the grounds that the European Court of Justice (ECJ) has deemed cross-border relocations of registered offices to be lawful on the basis of the European Treaties. The 1963 Association Agreement between the European Economic Community (EEC) and the Republic of Turkey would make these principles applicable here as well. As a result of the registration of the company in Turkey, the company continues to exist there as a Turkish limited liability company, but no longer exists in Germany. A "double existence" of the GmbH in Germany and Turkey was not intended.

The commercial register also refused to delete the GmbH. The company filed an appeal against this.

The decision of the OLG Zweibrücken - (decision of 11.07.2022 - 3 W 12/22)

The appeal remained unsuccessful. The OLG Zweibrücken found that the registration in the Commercial Register of Turkey was not sufficient to establish the effectiveness of the change of the registered office and legal form. The Association Agreement between Turkey and the EEC did not contain any regulations corresponding to the freedom of establishment of the European Treaties. The GmbH had thus not effectively transferred its registered office. Moreover, even if the freedom of establishment were applicable, the requirements of German transformation law for a change of legal form would first have to be met. This was not the case here. Moreover, the requirements for a deletion are not met, as the GmbH has not ceased its business operations.

Practical advice

If the registered office of a company is transferred, a strict distinction must be made as to whether the new registered office is to be located in the EU or not. If this is the case, the company can make use of the broad but quite complex possibilities of the European freedom of establishment, which the ECJ has defined in more detail in many decisions, and relocate its registered office while changing its legal form. In addition, there are new EU requirements for cross-border conversion, the implementation of which has been in force since the end of January.

If the registered office is to be transferred to a third country, different requirements apply. In no case, however, is it sufficient to merely enter the company under a new legal form in the register of a third country without observing the requirements of the conversion law. The background is obvious: If the mere registration in the third country were sufficient for a transfer of the registered office, this could be used abusively in the crisis of the company in order to evade the creditors.