List of shareholders

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According to Section 40 GmbHG , the list of shareholders is a document that is kept as an appendix to the commercial register and provides information on the shareholders of a limited liability company (GmbH) and their shares .

Legal basis and purpose of the list

The management of a limited liability company must immediately submit a list of the shareholders to the commercial register after any change in the persons of the shareholders or the extent of their participation . If a company is founded using a sample protocol, this replaces the list of shareholders ( Section 2 (1a) sentence 4 GmbHG).

The list of shareholders must contain the names (not names at birth), first names, dates of birth and places of residence of all shareholders as well as the nominal amounts and the serial numbers of the shares taken over by each shareholder ( Section 40 (1) GmbHG). If a notary has participated in a change to be notified and if this is effective, he must immediately sign the list instead of the managing director, submit it to the commercial register and send a copy of the changed list to the company. The list must be provided with a certificate from the notary that the changed entries correspond to the changes he was involved in and that the other entries correspond to the content of the list last recorded in the commercial register ( Section 40 (2) GmbHG). Since in practice the most frequent changes in the group of shareholders and in the portfolio of shares are notarized, almost every list of shareholders submitted today is a notarized list. In particular, the management is responsible for the subsequent submission of a forgotten or lost list, the notification of a shareholder succession after a death (inheritance) and the notification of a privately decided division or merger of business shares.

Registered companies, notaries and other registered users may call up the current list of shareholders for a fee, i.e. view, save and print it out via online inspection (www.handelsregister.de). Anyone who knows the date of the change can check free of charge online whether a list is actually available ("recorded") in the electronic commercial register for legal transactions.

The updating of the group of founding shareholders shown in the files traditionally serves to protect corporate creditors , as well as the information interests of minority shareholders and the public. They should not only be able to find out about the current group of shareholders, but also about the seamless sequence of shareholders and changes in business shares.

The law on the modernization of GmbH law and combating abuses (MoMiG) of October 23, 2008 has significantly upgraded the traditional information function of the list. In relation to the company, in the event of a change in the persons of the shareholders or the extent of their participation, only those who are entered as such in the list of shareholders in the commercial register (Section 40) ( Section 16 (1) GmbHG) are deemed to be the holder of a business share . In addition, it is now also possible to acquire shares in GmbH in good faith based on the list of shareholders . A bona fide acquisition of shares should lead to the fact that acquirers of shares may trust that the sold shares actually belong to the seller. A buyer can acquire shares in good faith if the seller has been entered in the list of shareholders in the commercial register for at least three years and without objection ( Section 16 (3) GmbHG). If it has been registered for less than three years, a purchase in good faith can only be considered if the error is attributable to the person actually entitled.

Content of the list of shareholders

The formal legal owners of the shares must be specified as shareholders, for example also trustees, but not persons who are economically behind a share or who are not involved.

If someone is incorrectly named or not named as a partner in a list, he has the right to have the company submit a correct list.

Submission of a complete new list is also required if it is a matter of simply changing the name of the partner (e.g. through marriage or change of company).

A change of address while maintaining your place of residence (i.e. in particular moving within the political community) does not trigger the submission requirement.

If a legal person (e.g. GmbH or AG ) or a partnership (e.g. OHG or KG ) is a partner, the registered office must be given instead of the “place of residence” . In principle, it is not necessary to give the exact address, but in exceptional cases if the place of residence or registered office is not sufficient for identification. BGB companies do not belong to the legal persons in the aforementioned sense ; with these all shareholders are to be listed. If a business share belongs to a BGB company, changes in the group of people in this BGB company also trigger an obligation to submit a new list for the GmbH.

The nominal amounts and the serial numbers of the shares taken over by each partner must be indicated. Several shares of a partner must therefore be listed separately; it is therefore not sufficient to state the total amount of his capital contribution. The extent to which capital contributions have actually been made does not need to be stated.

For this purpose, since June 26, 2017, the total scope of the holdings in the share capital must be stated separately as a percentage ( Section 40 (1) sentence 3 GmbHG). The indication of the percentage participation in the share capital is to be seen in conjunction with the introduction of the so-called " transparency register ", from which the beneficial owner of a company is to be derived. It is still unclear how the percentages should be rounded.

According to the wording of the law, it is not entirely clear whether lost shares (for example through confiscation) or the fact of confiscation must be stated, but it can be assumed by the majority of legal experts. This information is recommended in any case to avoid senseless extra work. The registry court checks whether the total of the registered shares corresponds to the registered share capital and will ask the company for clarification if there is suspicion of inaccuracy and regularly ask to add to the list.

If the management prepares the list, it must be signed by the management. The signature of a managing director with sole power of representation is sufficient, so not all managing directors have to sign.

No longer are mandatory

  • the specification of the profession (so-called "status") of the shareholders,
  • the annual submission of the list to the commercial register or an annual declaration that there have been no changes in terms of the identity of the shareholders and the extent of their participation.

Submission to the commercial register in electronic form

The submission to the registry court of the company headquarters was previously done by informal sending, recently the electronic form is required. The obligation to submit also exists during ongoing insolvency proceedings of the GmbH.

In accordance with Section 12 (1) of the Commercial Code (HGB), the submission of lists of shareholders to the commercial register is generally only permitted in electronic form. All that is required is the transmission of an electronic record, i.e. a scan of the list of shareholders. In the individual state regulations on electronic legal transactions it is stipulated that electronic transmission can only take place via the electronic court and administrative mailbox (EGVP).

Some local courts also offer a form for the list of shareholders as a Microsoft Word form for download on their form pages; The form must then be printed out, filled in, signed by the number of managing directors authorized to represent, then scanned and sent to the court via EGVP mailbox.

Electronic filing presents companies with greater difficulties than the previous paper filing if no notary is involved in the underlying change in shares, for example after inheritance and the division or amalgamation of shares. Although notaries are professionally not obliged to submit the lists, it is customary for the notaries to undertake this filing activity, unless it can be concluded that the notary is liable for the accuracy of the list.

The new list must be submitted immediately, i.e. without undue hesitation after the change has occurred, with the status on the date of dispatch.

If the registry court becomes aware of a change of shareholders, it will request the company to submit a new list of shareholders and note a deadline, often one month, for this. If this elapses unsuccessfully, the registry court can force the submission of the list by means of a penalty payment procedure against each managing director personally. The court will find out about a change of shareholder, for example, on the basis of a request for a current list or on the basis of a death known to the court or reported.

Directors' liability for damages

Managing that violate incumbent on them to immediately submit the current list of shareholders, adhere to the company's creditors (but not the creditors of a partner) for the resulting damage as joint debtors . In addition to not submitting the list, a breach of duty can also include the late submission and submission of an incorrect list. This violation must be causal for damage suffered by the obligee. This should be taken into account if an externally liable partner would have been available at a certain point in time, in particular also solvent, willing to pay or attachable, the creditor at that time demonstrably "was after liable persons" and the creation of the company due to negligence or inaccuracy of the list has remained unknown to the management.

Each managing director is jointly and severally liable to the company creditor, i.e. for himself up to the full amount of the damage.

literature

Legislative references and drafts

Web links

Individual evidence

  1. ^ Ulrich Seibert , Christian Bochmann, Johannes Cziupka: Sample protocol as an obstacle to transparency? In: GmbH-Rundschau . 2017, ISSN  0016-3570 , p. R289 ( gmbhr.de ).
  2. ↑ draft law of the federal government. In: Bundestag printed matter 18/11555. Retrieved August 18, 2017 .
  3. ↑ Ulrich Seibert , Christian Bochmann, Johannes Cziupka: Percentages in the list of shareholders: Practical guide and plea for judicial (register) restraint . In: GmbH-Rundschau . 2017, ISSN  0016-3570 , p. R241 ( gmbhr.de ).