Commercial Register (Germany)

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The commercial register in Germany is a public directory that keeps entries on the registered traders in the district of the competent register court and that provides information about the documents stored there. The commercial register provides information on essential legal and economic circumstances (" facts ") of business people and companies and can be viewed by anyone. Registration is possible, but not required, for sole proprietorships and GbRs . Entries in the commercial register enjoy comprehensive protection of traffic and trust in accordance with Section 15 of the Commercial Code (HGB). The right to register belongs to the area of voluntary jurisdiction .

history

In Berlin, the commercial register was kept from 1820 by the newly founded corporation of the Berlin merchants. With the adoption of the General German Commercial Code on June 24, 1861, this task was transferred, as everywhere in the German Confederation , to the relevant commercial or local courts.

In the German Reich, the central commercial register for the German Reich provided information as an independent daily publication on entries sorted by district court. The central commercial register was also attached to the German Reich Gazette .

Basics

The registration process Acceleration Act 1993 created the legal opportunity to lead the commercial register in electronic form. Due to the directives 2003/58 / EG, 68/151 / EWG, 2004/109 / EG as well as 2001/34 / EG a standardized electronic register management regarding databases with company information had to be introduced. The commercial register has been kept completely electronically since 2007. Both the transmission and submission of applications for registration EGVP and information about the content of the entries and the stored documents are carried out by means of electronic information and communication systems ( e-justice ). The legal and technical principles are regulated in Sections 8 to 12 of the Commercial Code (HGB) and in the Commercial Register Ordinance (HRV).

content

The register consists of two departments, department A (sole proprietorships, partnerships and legal economic associations ) and department B ( corporations ), which are abbreviated as HRA or HRB. Registrations to the register (new entries , changes, deletions ) must be made electronically in a publicly certified form ( Section 12 (1) HGB ). Entries are usually made upon request. Failure to register, but required, can result in a fine of up to € 5,000 ( § 14 HGB).

A company operated by a natural person (without the interposition of a legal person) or a partnership must be entered in the commercial register if the type and scope of this requires a commercial business operation ( § 1 , § 29 HGB). So-called “ small traders ” who do business but are not subject to the regulations for merchants ( Section 1 (2) HGB) are excluded . All corporations must always be entered in the register.

Entries

According to the Commercial Register Ordinance, the commercial register consists of electronically managed register sheets and contains, among other things, information on

Entries can be

  • constitutively (right he convincingly, giving rise to rights), d. H. the legal effect only takes effect upon entry;
  • declaratory (right be convincing, right-explanatory), d. H. the legal effect occurred before the entry, it is only confirmed by the entry.

Documents / submissions

In addition to the entries, various documents can also be viewed in the commercial register. This includes, for example, the list of shareholders in a GmbH ( Section 40 (1) GmbHG), the articles of association of corporations, lists of supervisory board members ( Section 106 AktG) or company agreements . These documents are included in the “register folder” for each register sheet and are kept accessible in the order in which they are received and sorted according to the type of document ( Section 9 HRV).

Departments

The entries in the commercial register are made in two departments. Corporations are registered in department B (HRB), all other companies (in particular sole traders and partnerships , but not the GbR here) in department A (HRA).

The HRA provides information about: company, legal form, owner or personally liable partner of the commercial partnership, change of owner or partner, place of establishment, amount of the limited partner's contribution, opening of insolvency, deletion of the company.

The HRB provides information about: company, legal form, location of the branch, managing director, share capital of the GmbH or share capital of the stock corporation (AG), power of attorney, company object, liquidation, opening of insolvency, deletion of the company.

The legal relationships and facts to be entered in these departments are very diverse, so that only the commercial register differentiates between facts that are subject to registration, registrable and non-registrable. In all other registers, the group of legal relationships is so limited that this distinction is not necessary.

Facts that require registration

The facts or legal relationships conclusively listed in the HGB, AktG and GmbHG (legal formulation: "must be registered") are subject to registration . Those involved in commercial transactions are therefore legally obliged to register these facts. This obligation to register can be enforced ex officio with penalties ( § 14 HGB) (compulsory registration ). In particular, the following are required to be registered:

Registrable facts

According to the established case law of the BGH, the entry of a fact in the commercial register, the entry of which is not determined or permitted by law (registrable fact), is only permissible if the purpose of the commercial register requires entry and there is a significant interest in legal transactions for its entry . In view of the strict formalization of the registration law, caution is advised when approving entries that are not regulated by law. This must be taken into account by restricting such entries to cases of the interpretation of statutory provisions, the formation of analogies and judicial legal training.

Few facts are considered registrable. They can be entered in the commercial register, but do not have to. For agricultural businesses, Section 3 of the German Commercial Code (HGB) only provides for non-mandatory registration; if they are registered, this creates their merchant status (constitutive effect). After the BGH affirmed the registrability of a company under civil law (GbR), the legislator changed the provision of Section 162 (1) sentence 2 HGB. The deviating liability agreement for the transfer of a commercial transaction provided for in Section 25 (2) of the German Commercial Code (HGB) is only registrable, as is the exemption from liability provided for in Section 28 (2) of the German Commercial Code (entry as a partner), which only takes effect when it is registered with third parties. The registrability of a fact must be checked ex officio by the registry court ( Section 29 FamFG).

Inapplicable facts

Not everything that is significant for legal and commercial transactions is entered in the commercial register. For example, the power of attorney ( Section 54 of the German Commercial Code) may not be entered, although this form of representation is of outstanding importance in the day-to-day business of companies and occurs daily in trade between companies.

Although the GmbH Act neither orders nor expressly permits the entry of corporate contracts with a GmbH as a dependent company in the commercial register, according to the highest court rulings, entry in the commercial register is required in accordance with § 53 , § 54 GmbHG. According to the BGH, the content and effects of the contract require a corresponding application of the formal requirements to be complied with when changing the articles of association. The entry in the commercial register therefore has a constitutive effect, because such a corporate contract as an organizational contract under company law changes the legal status of the controlled company in accordance with the articles of association. This change consists in particular in the fact that the authority of the shareholders 'meeting to issue instructions is transferred to the ruling company and the shareholders' right to receive profits is interfered with.

If, on the other hand, a partnership is the controlled company, the entry of a company agreement in the commercial register can neither be based on an express legal provision nor derived from a corresponding application of the provisions applicable to an amendment to the articles of association. According to the Munich Higher Regional Court, the conclusion of the partnership agreement is not tied to any form. In the case of OHG and KG, registration in the commercial register only includes information about the shareholders, the company and the registered office as well as the domestic business address of the company, the power of representation of the shareholders and the amount of the liability of the limited partners ( Section 106 Paragraphs 1, 2, 4, Section 162 (1) HGB). In contrast to the corporations, neither the articles of association nor the object of the company are entered in the commercial register for OHGs and KGs. The entry of a business contract of a partnership cannot therefore - as with the GmbH - be derived from the fact that the company statute is superimposed on the company contract.

publicity

As is often assumed, the commercial register has no public belief . With “negative” or “positive publicity”, a weaker but more complicated solution was found. This form is a protection of legitimate expectations that the person viewing the commercial register may enjoy with regard to the registered and non-registered facts.

A distinction is made in the commercial register between negative (trust-protecting) and positive (trust-destroying) publicity ( Section 15 (1) and (2) HGB). “Positive publicity” ties in with what is in the register. In the event of positive publicity, legal transactions can rely on facts actually contained in the commercial register ( Section 15 (3) HGB). If a fact that is subject to registration has been entered and made known, the registered merchant may refer to it after 15 days from the date of publication.

The negative publicity, however, ties in with what is not in the register. It protects third parties in their belief that there are no facts that are not entered in the register and not disclosed. Legal transactions can then rely on the fact that unregistered facts do not exist, unless they are known to the third party. For this reason, a businessman cannot, for example , invoke the expiry of a power of attorney vis-à-vis a business partner if the respective circumstance has not been entered and made known in the commercial register.

The protection of legitimate expectations in Section 15 (1) and (3) of the German Commercial Code does not apply to facts that are not subject to registration, but rather can only be registered. Positive and negative publicity only cover the facts that are required to be registered (“facts to be registered”) and also require the viewer to have good faith. He is not in good faith if he was aware of the non-registration or non-publication. According to the prevailing opinion, the person seeking information in good faith has the right to choose, according to which he can either refer to the negative publicity or opt for the - from the point of view of the businessman - true legal situation.

Responsibilities

The commercial register is run by the local courts as register courts . Local jurisdiction is usually the district court of the same place as the higher regional court ( Section 8 HGB, Section 376 FamFG ). The registry entries are made by the judicial officer or judge . The commercial register has been kept electronically across the board since January 1st, 2007.

Register access and data protection

The commercial register should fulfill a publication, evidence, control and protective function (negative / positive publicity). Inspection of the commercial register and the documents submitted there is therefore permitted to everyone in accordance with Section 9 (1) HGB. It takes place free of charge in the respective local court or online, in some cases for a fee, via the joint register portal of the federal states . You can research the company name, registered office, business address, management, power of attorney, register court, register number and date of changes online free of charge. However, old paper documents were only partially digitized and to varying degrees depending on the federal state. When inspecting the commercial register, the court must, on request, issue a certificate in accordance with Section 9 (5) of the German Commercial Code stating that no further entries are made with regard to the subject matter of an entry or that a specific entry has not been made. In practice, this certificate is called negative clearance .

In general, two extracts from the commercial register are possible, a current (AD) or a chronological printout (CD). The current print from the commercial register concerns the corresponding entries for a specific company, which only contains the information valid at the time. The chronological print shows all, both current and specially marked non-object (completed) entries in chronological order. The processes are displayed optically in accordance with the column division of the commercial register. If the company was already registered before the electronic commercial register was introduced, a scan of the old register sheet can be called up as a historical printout (HD). The entries that were still valid when the electronic commercial register was introduced have already been summarized in the initial electronic entry.

For some purposes (e.g. submission to foreign authorities), a printout is not sufficient and an apostille by the president of the local court or regional court or certification by the Federal Office of Administration and legalization may also be required.

Data protection does not restrict the right of inspection. In particular with regard to the inspection of the annual financial statements and the corresponding disclosure obligation, which has now been transferred to the Federal Gazette, there were numerous legal remedies, all of which were rejected by the Bonn Regional Court. The Federal Constitutional Court did not accept a corresponding constitutional complaint . As far as particularly endangered persons are involved, their full private address should therefore not be included in a document to be submitted to the commercial or company register by the notary.

Disclosure requirement

Corporations and partnerships without a natural person as a personally liable partner are obliged to disclose their annual financial statements to the operator of the electronic Federal Gazette . However, annual financial statements for the financial years up to and including 2005 must be disclosed to the commercial register. Depending on the size of the company, the documents to be disclosed vary in length ( Sections 325 ff. HGB). The disclosure requirement was extended to include electronic transmission with effect from the 2006 financial statements and is currently only possible in electronic form. The respective closing documents had to be submitted in printed form to the registry courts until the introduction of electronic publication to the operator of the electronic Federal Gazette in 2006.

publication

Entries made in the commercial register are published on the Internet ( Section 10 HGB). By December 31, 2008, the entries were also published in one or more local bulletins ( Art. 61 Para. 4 Clause 1 EGHGB). The announcements on the Internet can be searched for in the joint register portal of the federal states of the Federal Republic of Germany.

Some regional daily newspapers offer the possibility on their website to look up entries in the commercial register made by the local district court in recent years. However, the content of the original database is not displayed, but a legally non-binding collection of data from the respective daily newspaper.

costs

For entries in the commercial register, fees are charged according to the regulation on fees in commercial, partnership and cooperative register matters (HregGebV). Fees and expenses according to the Court and Notary Fees Act (GNotKG) are charged for the issuing of copies and printouts .

Legal remedies in the register procedure

Before an entry is made, the registration courts are obliged to check the formal and substantive justification of the entry application and to reject applications that cannot be registered. The legal remedy against these decisions and the entries made in registers is not possible through the ordinary judicial process, since these are decisions of the register court within the framework of voluntary jurisdiction ; Only a complaint against this is possible in accordance with § 58 FamFG, insofar as it is permissible under the law, in particular against decisions that refuse entry. Entries made by the registry court cannot be contested ( Section 383 (3) FamFG). The Higher Regional Court is responsible for the complaint ( Section 119 (1) No. 1 (b) GVG). Under the conditions of Section 70 FamFG, there is an appeal on points of law to the Federal Court of Justice against its decision .

However, a breach of official duty by the registry judge does not lead to state liability under Article 34 of the Basic Law in conjunction with Section 839 (2) BGB, because judges at registry courts are not arbitration judges and therefore they do not benefit from the so-called arbitration privilege of Section 839 (2) BGB. The state liability takes place here according to Article 34 GG, § 839 Abs. 1 BGB.

See also

literature

  • Alexander Krafka, Ulrich Kühn, Register Law (Handbuch der Rechtsspraxis, Volume 7) , 10th edition, Verlag CH Beck, Munich 2017, ISBN 978-3-406-69629-9 .
  • S. Christ, A. Müller-Helle: Obligations to publish under the new EHUG . Haufe Verlag, Munich 2007, ISBN 978-3-448-07495-6 .
  • Fleischhauer, Preuss (ed.): Commercial register law . 3rd edition, Erich Schmidt Verlag, Berlin 2014, ISBN 978-3-503-15604-7 .
  • Martin Schmidt-Kessel, Gerd Leugner: Commercial register law. Comment . 1st edition, Verlag CH Beck, Munich 2010, ISBN 978-3-406-56205-1 .

Web links

Germany:

Individual evidence

  1. ↑ Law on the electronic commercial register and cooperative register as well as the company register (EHUG) of November 10, 2006, Federal Law Gazette I, p. 2553. Library of the Federal Court of Justice - legal materials, accessed on July 23, 2018
  2. ↑ Commercial register . Business start-up portal of the BMWi . March 28, 2007. Retrieved November 26, 2015.
  3. ↑ BGH NJW 1998, 1071
  4. ↑ BGH NJW 1992, 1452
  5. ↑ BGH ZIP 2001, 1713
  6. ↑ Josef Ellenrieder: Important non-registrable events. In: akademie.de. August 4, 2011, accessed July 24, 2012 .
  7. ↑ BGH NJW 1989, 295, 298 f.
  8. ↑ OLG Munich, decision of February 8, 2011, Az .: 31 Wx 2/11
  9. ↑ Friedrich Schade: Publicity effects of the commercial register ( Google Books ) In: Commercial Private Law - Basics of civil and commercial law . Kohlhammer Verlag . S. 189. 2009. Accessed November 26, 2015.
  10. ↑ On the local jurisdiction of the local courts as a register court: List of places and courts in the justice portal of the federal and state governments .
  11. ↑ Joint register portal of the federal states — usage regulations , accessed November 3, 2018
  12. ↑ Hartmut Oetker / Jens Koch / Ulrich Burgard (eds.), Großkommentar HGB , Volume I, 2009, p. 265
  13. ↑ Current sample print on www.handelsregister.de
  14. ↑ Chronological sample print on www.handelsregister.de
  15. ↑ Gerhard Lüke : Register view and data protection , NJW 1983, 1407
  16. ↑ Christian Starck , balance publicity Notice German tax law in 2008, S. 2035
  17. ^ LG Bonn, decision of 30 June 2008 - 11 T 48/07
  18. ↑ BVerfG, January 30, 2006 - 1 BvR 2126/05
  19. ↑ Ulrich Seibert / Frauke Wedemann, The protection of the private address in the electronic trade and company register , in: GmbH-Rundschau , 2007, p. 17