von Göler (Hrsg.) / Ulrich Schnelle / § 16

§ 16 Legal status following change in shareholders or extent of participation; purchase from non-authorised persons

(1) In the event of a change in the person of a shareholder or the extent of that person’s participation, the owner, in relation to the company, of a share is deemed to be only whoever has been included as such in the list of shareholders entered in the Commercial Register (section 40). A legal act performed by the transferee in relation to the company is deemed effective from the outset if the list is entered in the Commercial Register without delay after performance of the legal act.

(2) The transferee as well as the transferor are held liable in respect of obligations to pay capital contributions which are overdue at the point in time from which the transferee is deemed, in relation to the company, to be the owner of the share pursuant to subsection (1) sentence 1.

(3) The transferee may effectively acquire a share or a right in a share from a non-authorised person by legal transaction if the transferor has been named as the owner of the share in the list of shareholders entered in the Commercial Register. This does not apply if, at the time of the purchase, the list was incorrect in respect of the share for no more than three years and the incorrectness cannot be attributed to the person entitled. Further, a purchase in good faith cannot be made if the transferee is aware of the lack of authorisation or is unaware of the lack of authorisation as a consequence of gross negligence or if an objection to the list has been entered. The objection is entered on the basis of an interim order or on the basis of the approval of that person against whose authorisation the objection has been raised. A threat to the right of the person raising the objection need not be substantiated.

Table of contents
Expert Notes for Legal Professionals
Table of contents
1) Allgemeines

Section 16 GmbHG contains three regulatory sections concerned with entering the (new) shareholder in the list of shareholders recorded in the commercial register pursuant to sec. 40 and thus makes certain aspects of the acquisition of shares dependent on being recorded in the list of shareholders. Paragraphs 1 and 2 relate to the relationship between the company and the shareholder. Pursuant to paragraph 1, only a person who is entered in the list of shareholders recorded in the commercial register is considered to be a shareholder in relation to the company and this is, in principle, independent of the legal position under substantive law. Pursuant to paragraph 2, the person entered in this list is liable alongside the person previously recorded for obligations which are overdue in respect of the

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2) Definitionen

a) Legal effect of the entry in the list of shareholders recorded in the commercial register (section 16 I 1)

aa) Changes in the person of a shareholder:

This relates to every change of shareholder. It can take the form of singular succession by way of transfer pursuant to sec. 15 III GmbHG, which also covers a transfer for security or trust purposes and also acquisition by way of forfeiture pursuant to sec. 21 or abandon pursuant to sec. 27 and by the company itself. There is also a change of shareholder in the event of universal succession, for instance by way of devolution of an inheritance pursuant to sec. 1922 BGB, transfer by reorganisation pursuant to the German Reorganisation of Companies Act (Umwandlungsgesetz (UmwG)), accrual under sec.

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3) Abgrenzungen, Kasuistik

a) Legitimation effect of recording the list of shareholders in the commercial register

Through the legitimation effect embodied in the provision of subsec. I 1, that person who is entered as shareholder in the list of shareholders recorded in the commercial register is deemed to be the shareholder in relation to the company and this applies independently of his substantive authorisation; this is also referred to as the formal status of shareholder. Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 19; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 23

The fact that the company has positive knowledge of the absence of substantive authorisation does not oppose the legitimation effect. Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6), margin no. 20; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 51; BeckOK GmbHG/Wilhelmi,

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4) Zusammenfassung der Rechtsprechung

With regard to the fundamental procedural questions, reference can be made to the presentation of the jurisdiction made in 4) above.

a) Legitimation effect

The shareholder of a GmbH is not dependent on having a judicial assessment of his legitimation in relation to the GmbH. This is determined by section 16 I GmbHG. With respect to action aiming at acknowledgement of a shareholder’s legal position pursuant to section 256 I ZPO, there is therefore no interest in having the legal relationship established. Action for interim acknowledgement pursuant to section 256 II ZPO can be admissible, however, as has been confirmed by OLG Hamm in a specific case. OLG Hamm, judgment of 16.04.2014 – 8 U 82/13, NZG 2014, 783 (784) = GmbHR 2014, 935 = ZIP 2014, 1479 

b) Entering an objection pursuant to subsection III 3 alternative 2

The person with substantive authorisation has a claim against the company which can be brought by taking legal action to have the list of shareholders amended Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 229; Wicke, GmbHG (footnote no. 14 above), margin no. 25 by applying for an interim order. Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 229; see also the case law of OLG Nuremberg above (77) and of the KG above (79). Contrary to the opinion of the OLG Brandenburg (margin no. 130 above) the claim has to be brought against the company.

Prior to expiry of the 3 year period it is necessary to make a suitable factual submission on the specific risk of a purchase in good faith. KG, ZIP 2014, 1881, above (77). This action may only be taken by the person who claims to be the owner of the share concerned. The respondent is that person who has been entered in the list of shareholders as the owner of the corresponding share. Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 74; further, also regarding the managing director, Roth/Altmeppen/Altmeppen, GmbHG (footnote no. 23 above), margin no. 77; Wicke, GmbHG (footnote no. 14 above), margin no. 25; also regarding co-shareholders Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 228.

The objection is cancelled with the approval of the person who applied for it or by cancelling the interim order Lutter/Hommelhoff/Bayer, GmbHG (footnote no. 6 above), margin no. 75; Michalski/Ebbing, GmbHG (footnote no. 6 above), margin no. 230; Scholz/Seibt, GmbHG (footnote no. 20 above), margin no. 97, as an “actus contrarius” to the possibility of entering an objection provided for in section 16 III 4. As ruled by the Kammergericht (KG) (142) above, there can be no question of submitting a new list of shareholders without entering an objection, as the list of shareholders as such remains correct without change and the conditions of section 40 I 1 have not therefore been met.

c) Legitimation effect of subsection I

Judicial rulings on section 16 I are concerned primarily with questions relating to the list of shareholders, in particular with who is permitted to submit the list and the scope which the list may have, and also with regard to the relationship between the authorisation under substantive law and the formal authorisation pursuant to I 1.

aa) Formalities of the list of shareholders:

(1)

BGH, ruling of 20.09.2011 – II ZB 17/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=2cc7d993c66ed5578940a26ef6e8bbd0&nr=58010&pos=0&anz=1, BGHZ 191, 84 = NZG 2011, 1268 = DB 2011, 2832 = GmbHR 2011, 1269 = MittBayNot 2012, 149

The court of registration has the right to reject a list of shareholders which, in deviation from section 40 I 1, II 1 GmbHG, does not show any changes in the persons identified as shareholders or in the extent of their participation but merely gives advance notification of such changes. In the event of acquisition subject to a condition precedent, it is not possible to submit the list until the condition has been satisfied (margin no. 74).

Pursuant to sec. 16 III GmbHG, the list of shareholders is the point of reference for acquisition of a share in good faith. The effects of the ostensible existence of a legal situation (Rechtsscheinwirkung) of sec. 16 III can only go as far as the list of shareholders, which constitutes the basis for the ostensible existence of a legal situation, can give rise to the legitimate expectations that are authoritative for legal relations. However, the list of shareholders is not suited for creating the legal appearance that the owner of the share recorded in the list has not already disposed of it subject to a condition precedent. The list of shareholders does not provide the basis for legitimate expectations that the share is free of encumbrances or that the shareholder is not restricted in his power to dispose of the share by the articles of association. As regards the restriction of the power of disposition in the event of acquisition subject to a condition precedent in accordance with section 161 I BGB (margin no. 81) the same applies.

Although it is only the custodian, the court of registration is allowed to examine the list submitted, certainly in terms of whether it meets the requirements of section 40 I 1 GmbHG. In this vein, OLG Munich already, decision of 08.09.2009, 31 Wx 82/09, NJW 2010, 305. The court of registration therefore has the right to reject a list of shareholders, which, in breach of sec. 40 I 1, II 1 GmbHG, does not evidence any changes to the persons who are shareholders or to the scope of their holding, but merely gives advance notification thereof. It is not at the discretion of the parties involved to supplement the content of the list of shareholders submitted by them in deviation from the requirements of statute by including additional details which strike them as being pertinent. This is to be distinguished from a case whereby a change to be included in the list of shareholders within the meaning of sec. 40 I has already come to pass, but the law does not make a mandatory stipulation as to how this change is to be presented in the list of shareholders. For this reason there can be no criticism, for example, of a renumbering of transferred shares classifying the origin thereof by striking though the sequential numbers applying hitherto and providing evidence of the change under the new sequential numbers, if this results in a sufficiently clear allocation of the shares being guaranteed (margin no. 73).

(2)

BGH, ruling of 24.02.2015 – II ZB 17/14, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=f1b5105bc6a572341a0cde224f8500c0&nr=70645&pos=0&anz=1, NJW 2015, 1303

The court of registration may refuse to record a list of shareholders endorsed with a statement of the executors. A statement of the executors is not included in the details specified for inclusion in the list of shareholders. Under sec. 40 I 1 GmbHG, following a change in the persons who are shareholders or in the extent of their holding, a list of shareholders has to be submitted showing the family name, first name, date of birth and place of residence of the latter and the nominal amounts and sequential numbers of the shares subscribed to by each of the shareholders. After an inheritance, although there is a change in the persons who are shareholders, no inclusion of a statement of the executors is provided for in the new list of shareholders to be submitted by reason of the inheritance. It is not at the discretion of the persons affected to arbitrarily add to the content of the list of shareholders they submit, in deviation from the statutory requirements, by including additional components which they consider to be appropriate. This runs counter to the principle of clarity for the register which also applies accordingly to the list of shareholders. If additions to the list of shareholders are allowed at the discretion of the parties, the risk of lack of understandability and clarity is greater than with entries in the commercial register, because this list is not – unlike the commercial register – amended by a governmental agency in accordance with the rules laid down in the Commercial Register Ordinance, but is a list submitted by notaries and managing directors with a structure which is neither stipulated in detail nor does it have to be verified (margin no. 72). The fact that, in the event of an inheritance, there is no doubt as to a change in the persons who are shareholders in relation to the company does not establish the need for inclusion of a statement of the executors. The executor is not reliant on legitimation through the list of shareholders. The heir is the owner of the share even in the event of permanent executorship (Dauertestamentsvollstreckung). The heir is also the holder the right to vote; it is merely exercising the right to vote that can be the responsibility of the official appointed (Amtswalter). BGH, judgement of 13.05.2014 – II ZR 250/12, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=30707e07158863bc22923bb69eed2118&nr=68320&pos=0&anz=1, BGHZ 201, 216 = GmbHR 2014, 863. The appointment of officials is made by reference to the authority to exercise the right and not to the status of shareholder. In order to exercise the voting right it suffices for the official to have a certificate as executor as proof of his legitimation vis-à-vis the company. Nor is there any need to have a statement of the executors included in the list in order to prevent acquisition in good faith of the share from the heirs (margin no. 76 und 77). In this vein OLG Munich already, decision of 15.11.2011 – 31 Wx 274/11, ZIP 2012, 1669 (1670) = GmbHR 2012, 39.

(3)

BGH, judgment of 17.12.2013 – II ZR 21/12, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=c6c4651c33e26e200b18a5c5b2810bce&nr=66543&pos=0&anz=1, ZIP 2014, 216 = NZG 2014, 184

The managing director is authorised to correct an incorrect list of shareholders submitted by a notary pursuant to sec. 40 II 1 GmbHG. Under sec. 40 II 1, the notary is placed in the stead of the managing director who, pursuant to sec. 40 I GmbHG is, in principle, responsible for submitting the list, but this provision fails to regulate the correction thereof. If the correction also had to be arranged via the notary who submitted the incorrect list, this would constitute an unnecessary and time-consuming detour, especially since the company cannot easily compel an unwilling notary to submit a corrected list (margin no. 96). Prior to submitting a corrected list of shareholders, the managing director must give the person affected the opportunity to make comments. If the person affected objects to the correction, this does nothing to change the authorisation of the managing director to ensure that the list of shareholders is corrected, as long as the person affected does not obtain an interim order enjoining the managing director from submitting a changed list of shareholders (margin no. 99). The person affected can protect himself against a possible disposition of the share by the shareholder recorded in the list of shareholders by means of an objection or by applying for an interim order provisionally enjoining the managing director from submitting the amended list of shareholders (margin no. 102).

(4)

BGH, ruling of 17.12.2013 – II ZB 6/13, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=81f067eef85431ae6880d81b0efe2fe5&nr=66653&pos=0&anz=1, BGHZ 199, 270 (273) = GmbHR 2014, 248 = ZIP 2014, 317

The court of registration is not authorised to examine whether a notary resident abroad or at least a notary having his domicile in Basle/Switzerland is permitted to submit a list of shareholders. A list of shareholders has to be recorded in the commercial register if changes in the persons who are shareholders or in the scope of their holding have already come to pass, but also if the amended entries in the list of shareholders submitted originate from the managing director or from the notary who collaborated in the changes. In this respect the formal examination right of the court of registration is restricted, however, to establishing whether the person who submits an amended list of shareholders for recording in the commercial register is a person named in sec. 40 I and II GmbHG, for instance also the notary, who collaborated in the changes corresponding to the changed entries (margin no. 71, 72). In the registration process it is not easily possible to resolve any doubts as to whether the managing director or notary is authorised to submit the list he signed in a specific case. A complaint regarding a list submitted by a notary abroad would therefore only be covered by the formal examination right of the court of registration if a notary domiciled abroad, or certainly a notary domiciled in Basle/Switzerland, were not entitled to submit a list of shareholders under any circumstances and he would therefore be on a par with a third party whose lack of authorisation could certainly be established by the court of registration. This is not the case, since the notarial certification required under the GmbHG can be undertaken by a notary abroad, provided that the foreign notarial certification is equivalent to the German notarial certification. With regard to the question to be resolved it is of no relevance either whether the notary abroad who furnished the share transfer with notarial certification is obliged to submit the list pursuant to sec. 40 II, or whether this obligation is only incumbent upon German notaries.

(5)

OLG Munich, judgment of 29.07.2010 – 23 U 1997/10, GmbHR 2011, 429 (430) = ZIP 2011, 570

The shareholder of a GmbH has no claim against the managing director for submission of a list of shareholders with specific content. Such a claim for correction is only conceivable in relation to the company. Differences of opinion on managing director issues are to be resolved between the shareholder and the legal entity.

(6)

OLG Brandenburg, decision of 12.12.2013 – 7 W 72/12, NZG 2013, 507 (508) = GmbHR 2013, 309

Action to enforce submission of a list of shareholders of a GmbH to the commercial register must be taken against the managing director and not against the company, as this is a highly personal obligation of the managing director. A notary involved in a share transfer subject to a condition precedent, who does not, however, have to monitor satisfaction of the successive condition, is not obliged to submit the amended list of shareholders after satisfaction of the condition precedent on his own initiative. This obligation is incumbent on the managing director. In deviation from the judgment of the OLGMunich presented above, the OLG Brandenburg assumes, based on the claim for damages against the managing director pursuant to sec. 40 III GmbHG, that the shareholder has a direct claim for performance with respect to the managing director. Considering the highly personal obligation of the managing director, the claim for performance can also only be brought against the managing director himself and not against the GmbH. The decision is not yet final and non-appealable.

(1)

OLG Bremen, judgment of 21.10.2011 – 2 U 43/11, GmbHR 2012, 687 (688) = NJW-Spezial 2012, 432 = GmbH-StB 2012, 176

Resolutions adopted by a meeting of shareholders of a GmbH, also including, for example, a resolution to redeem a share affecting persons who are shown by the list of shareholders not to have been shareholders at the time of the resolution, are void and ineffective from the very outset. A claim can be brought against this by the person affected thereby by taking general action for acknowledgement in accordance with sec. 256 ZPO.

If an agreement on the sale of a GmbH share has been contested, then the civil law rules governing nullity and avoidance do not lead to a situation whereby the shareholders are retroactively reinstated in their former legal positions in relation to the company. The provision of sec. 16 I rather provides that, notwithstanding the true legal position, the company has the right and the obligation to refer to the content of the list of shareholders, without evidence to the contrary being admissible in this respect. The company may only treat that person as shareholder who is entered in the list of shareholders; no reliance may be made on subjective moments, however, i.e. not even on whether the company had positive knowledge of the incorrect nature of the list.

(2)

OLG Zweibrücken, decision of 15.12.2011 – 3 W 144/11, GmbHR 2012, 689 = NZG 2012, 471

The consequences resulting from sec. 16 I GmbHG under procedural law apply to all shareholder rights and obligations, including, in particular, the rights of the new shareholder to collaborate in the company’s decision-making process. Although, under substantive law, the new shareholder already owned the share that the old shareholders were resolving to divide, as the new list of shareholders had not yet been submitted to the commercial register and was therefore not yet recorded, it was possible for a meeting of shareholders to be held in the absence of the new shareholder and for resolutions to be effectively adopted by the old shareholders.

(3)

BGH, ruling of 17.07.2012 – II ZR 216/10, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=0de82d3dd8c8b05962e382adb64774ec&nr=62065&pos=0&anz=1, GmbHR 2012, 1303 (1304) = ZIP 2013, 117

Under the old version of the law, a person not covered by the fiction of sec. 16 I GmbHG (old version) already had no right to take action aimed at having the shareholder resolutions declared void or at having a positive acknowledgement decision. This applies all the more since the new version of sec. 16 I GmbHG. The OLG Hamm, judgment of 16.04.2014 – 8 U 82/13, NZG 2014, 783 (784) = GmbHR 2014, 935 = ZIP 2014, 1479, deals with the right to take action for acknowledgement of the status of shareholder; this is pending at the BGH as an appeal on a point of law under no. II ZR 184/14.

(4)

BGH, judgment of 27.01.2015 – KZR 90/13, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=2df958b251c268a635ebb4fe60e8900f&nr=70580&pos=0&anz=1, NZG 2015, 478 (479, 480)

The nullity of a share sale and transfer agreement under antitrust law pursuant to sec. 134 BGB and sec. 1 Act against Restraints of Competition (GWB) does not counter the assumption that a shareholder is deemed to be the acquirer of the share in relation to the company and thus as shareholder under the old and new versions of sec. 16 I GmbHG. The BGH (ibid.), at margin no. 18, undertakes a close examination of literature with regard to the question of whether sec. 16 I also intervenes if the nullity of the transfer of a share pursuant to sec. 134 BGB is based on a violation of sec. 1 GWB. Overall the BGH concurs with the prevailing opinion of the time. The BGH continues its case law on the old law, according to which the defective accession to a GmbH is not to be judged in accordance with the principles of the defective company (fehlerhafte Gesellschaft) because irrespective of the true legal situation, pursuant to sec. 16 I the company was able to and had to treat anyone as a shareholder whose acquisition of a share was covered by the irrefutable assumption. Even if the objects of the company aimed at a violation of the cartel prohibition, there is no need for the nullity of the accession to occur by law (margin no. 87). Payments made to the company or to co-shareholders by such a bogus shareholder are not therefore made without any legal ground so that claims based on unjust enrichment are excluded between the bogus acquirer who made the payments and the respective beneficiaries (margin no. 92).

d) Questions of liability pursuant to subection II

OLG Cologne, judgment of 31.03.2011 – 18 U 171/10, NZI 2011, 376 = BeckRS 2011, 08127

The OLG Cologne confirms the liability of the acquirer pursuant to sec. 16 II also with respect to repayment claims under sec. 31 I GmbHG. The court does not consider this claim to constitute a personal claim which sec. 16 II does not apply to, but is of the opinion that capital conservation is the opposite side of capital provision. It therefore appears to be consistent to also apply sec. 16 II to those obligations which – like sec. 31 GmbHG – serve to maintain capital. The default liability of the co-shareholders pursuant to sec. 31 III GmbHG supports this having the characteristic of an obligation to contribute and is against its being a personal debt.

e) Purchase in good faith pursuant to subsection III

At the forefront of judicial decisions are questions relating to the opposition and to the scope of submissions in actions applying for an interim order to prevent acquisition in good faith.

(1)

OLG Munich, decision of 11.03.2011 – 31 Wx 162/10, NZG 2011, 473 (474) = DNotI-Report 2011, 54

Since, when a share is acquired in a GmbH, it is only good faith in the seller’s capacity as owner of the share that is protected but not in his unrestricted authority to dispose of the share, if a sale is subject to a condition precedent there is no interim acquisition in good faith by a third party. This is why entering an objection to the list of shareholders submitted to the commercial register is neither necessary nor admissible in such cases.

(2)

KG, decision of 01.04.2010 – 2 W 36/10, ZIP 2010, 2047 (2050) = BeckKS 2010, 13125

Pursuant to sec. 16 III 5 GmbHG, the existence of a ground for an order pursuant to sec. 935 and 940 ZPO has to be assumed. The Kammergericht considers it to be irrelevant whether this assumption is irrefutable. In this specific case the Kammergericht has, however, decided that the assumption of the ground for an order in the specific case was not refuted by the behaviour of the person seeking the order himself. It does not follow from sec. 16 III 2 that up until the expiry of the three year period, the statutory presumption of urgency of sec. 16 III 5 GmbHG is refuted by law, as it were, for instance because up until this time the affected party did not even have to fear the loss of his share. This is because the consequence of such an opinion would be that issuing an interim order in the first three years after submission of the list of shareholders would be generally excluded. According to the Kammergericht, it has to be assumed, however, that such a severe restriction of an interim order explicitly provided for in sec. 16 III 4 would have been expressed in the wording of this provision or at least in the statutory materials, and this is not the case.

(3)

OLG Nuremberg, decision of 19.08.2014 – 12 W 1568/14, ZIP 2014, 1881

An interim order aimed at entering an objection pursuant to sec. 16 III 3 alternative 2 GmbHG must not always be sought if the shareholder establishes that an incorrect list of shareholders has been submitted to the commercial register. To this extent it suffices if there is an abstract risk of an acquisition in good faith based on the incorrect nature of the list of shareholders only after expiry of the 3 year period of sec. 16 III 2 GmbHG. If the 3 year period of this provision has not yet expired, however, a person seeking an interim order aiming at entering an objection is required to present a threat to his rights which makes it appear necessary for an interim order to be issued prior to expiry of the three year period already. The OLG Nuremberg assumes that the three year period is also intended to serve the purpose of enabling the shareholder to reach an agreement with the company, the managing directors, the co-shareholders or the putative shareholder to the effect that the commercial register correctly states the shareholder relationship again. If the claimant still has sufficient time to obtain clarification in ordinary procedure, then the matter has no urgency. If the judicial action should take such a long time that the three year period will soon have expired, the claimant would then be at liberty to apply for an interim order at such time. The urgency would then derive from the fact that the three year period was about to expire.

(4)

OLG Thüringen, judgment of 09.10.2013 – 2 U 678/12, GmbHR 2013, 1259 with note by Heinze

Contrary to the opinion of the OLG Brandenburg presented above (margin no. 130), the OLG Thuringia assumes that in legal action taken to have an amendment to the list of shareholders it is the company which is the correct defendant and not the managing director. This legal opinion had already been stated by the OLG Thuringia in the procedure for an interim order (judgment of 05.12.2012 – 2 U 557/12, GmbHR 2013, 145, commentary Peetz). The OLG Thuringia is of the opinion that prevailing opinion in literature supports its legal opinion and not that of the OLG Brandenburg. This was the reason for not allowing an appeal on a point of law.

(5)

KG, decision of 15.07.2013 – 12 W 30/12, GmbHR 2013, 762 (762) = DB 2013, 1477 = ZIP 2013, 1176 = DB 2013, 1748

If an objection has been entered against an entry in the list of shareholders, then the only conceivable way of reversing it is to cancel the objection as an “actus contrarius” to the possibility of entering an objection of sec. 16 III 4 GmbHG. Cancellation of the objection is not explicitly covered by sec. 16 III. Cancellation of the objection as an “actus contrarius” to the possibility of entering an objection of sec. 16 III 4 GmbHG is admissible, however. The precondition is, by analogous application of the legal concept of sec. 19 German Land Register Code (Grundbuchordnung – GBO), for the entitled person to have consented to the cancellation of the objection entered in his favour. Submitting a new list of shareholders with respect to which no objection is entered is not conceivable, however, since the requirements of sec. 40 I 1 GmbHG have not been met, because the list was and remains correct in the specific case so that the unchanged list was therefore correct and no change had come to pass.

Query to the author
5) Literaturstimmen

The main discussions in legal literature relating to the interpretation of certain elements of section 16 are set forth below on those subjects on which jurisdiction has not yet – as far as can be seen – expressed an opinion.

a) Question relating to recording the amended list of shareholders in the commercial register without undue delay

According to one opinion expressed in literature, culpable delay is only considered to be detrimental with regard to the notification and evidence of the change and submission of the list of shareholders to the commercial register, but not the culpable delay of the judge of the court of registration, whose behaviour is not imputable to the transferee. Lutter/Hommelhoff/Bayer, GmbH-Gesetz (footnote no. 6 above), margin no. 37; Scholz/Seibt, GmbHG (footnote no. 20 above),

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6) Häufige Paragraphenketten

The chains of clauses where section 16 GmbHG frequently appears are in conjunction with section 15 and with the formal provisions relating to the list of shareholders of section 40 GmbHG.

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7) Anmerkungen

Section 16 GmbHG does not satisfy the high expectations of legal relations – especially as far as the possibility of acquisition in good faith of GmbH shares is concerned. This is primarily due to the fact that the point of reference is to the list of shareholders as the basis for imputability. A list of shareholders is of itself manipulable, however, and it does not, for example, enjoy the public credence of the land register within the meaning of sec. 885 BGB.

The provision embodied in section 16 I 2 GmbHG, which was actually intended to simplify the situation for a transferee whose name has not yet been entered in the list or with respect to whom the list has not yet been recorded in the commercial register, carries

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Author & Law firm
Dr. Ulrich Schnelle, Rechtsanwalt im Gesellschaftsrecht in Stuttgart
Dr. Ulrich Schnelle, attorney-at-law
US@Haver-Mailaender.de +49 7 11 / 2 27 44 27

Managing partner, lawyer since 1992

Ulrich Schnelle specializes in European and German antitrust law, in particular in antitrust proceedings, in merger control, on issues of abuse of a dominant position and in contract antitrust law. He also advises domestic and foreign companies on corporate law, M&A transactions and distribution law. He also represents clients before authorities and courts at home and abroad in all areas of law that he works on. A special focus of Ulrich Schnelle is advising on cross-border mandates, in particular for clients from the English-speaking area, from Western and Southern Europe and Asia.

Ulrich Schnelle studied law at the Universities of Passau, Geneva, Freiburg im Breisgau (there also Dr. iur.) And at the University of Illinois, USA, where he obtained the title of Master of Laws (LL.M.). The stays abroad and the doctorate were made possible by grants from various organizations, in particular the DAAD. During his studies he was a research assistant at the chair for comparative law and international private law at the University of Freiburg. He is a member of various antitrust and other interest groups and supervisory bodies as well as a speaker at specialist events. Ulrich Schnelle publishes regularly on antitrust law and corporate law. He speaks English, French and Russian.

HAVER & MAILÄNDER

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Tel: +49 7 11 / 2 27 44 27
US@Haver-Mailaender.de

Profile of the law firm

HAVER & MAILÄNDER was formed in 1965 from the cooperation between Dr. Friedrich Haver († 1976) and Dr. K. Peter Mailänder. Today, we are a law firm of over 30 lawyers and one of the few medium-sized firms in Germany with national and international renown.

Our clients' entrepreneurial activity abroad and cross-border transactions of all kinds naturally lead to encounters with foreign legal systems, for instance when setting up a branch or subsidiary abroad, when purchasing or merging with another company, in the export business, in the event of disputes on trademark or patent infringements or in case of product liability. Incidents of this nature frequently necessitate advice on foreign law. Naturally we accompany our clients here too.

About the author:

Partner, Attorney at law since 1992
Ulrich Schnelle focuses largely on European and German antitrust law, in particular on antitrust proceedings, merger control, questions of the abuse of a dominant position in a market and antitrust-related contract law (recommended for antitrust law in Legal 500 2012/13). He further advises national and international companies on corporate law, on M&A transactions and distribution law. In all of the legal fields Ulrich Schnelle practises in he also represents clients before authorities and at court both in Germany and abroad. One of his particular specialisations is counselling clients on cross border operations, especially clients from English-speaking countries, from western and southern Europe and Asia.
Ulrich Schnelle studied law at the universities of Passau, Geneva, Freiburg im Breisgau (where he also obtained his doctorate in law) and at the University of Illinois, USA, where he was awarded the title of Master of Laws (LL.M.). His study periods abroad and doctorate degree were made possible by scholarships from various organisations, including the DAAD in particular. Whilst studying at university he also worked as an academic assistant at the Department of Comparative Law and International Conflict of Laws of the University of Freiburg. He is a member of various antitrust and other professional associations and supervisory boards and also lectures at professional conferences. Ulrich Schnelle regularly publishes articles on antitrust law and corporate law. He speaks English, French and Russian.

Practice areas
Intellectual Property
Compliance
Mergers & Acquisitions
Corporate law
Construction Law, Corporate Law
Int. Wirtschaftsrecht
Intern.business transactions
Öffentliches Recht
Public Business Law
Employment & Equalities
European Law
Private Equity
Sports Law
Insurance
Insolvency Law
Datenschutz
Arbitration, Litigation
Commercial
Restructuring
Int. Schadensrecht
IT Law
Ehevertrag
Family Law
Banking & Finance
Banking Law
Arbeitsrecht
Labour Law
Strategic orientation

As a medium-sized group of highly-qualified lawyers with economic expertise and other certified specialisations, we pursue a different concept from that of giant law firms. We consider ourselves to be a closely-meshed network of lawyers, organised as partners in a 'law boutique' with an absolute focus on our clients and their interests. Our advice is highly personal and individual, target-oriented and success-related. Our clients are each under the responsibility of one partner who is personally available as the constant point of contact. We always take an overall and concentrated view of problems.

Offices & lawyers

Dresden, Frankfurt, Stuttgart, Brussels

Strategic Alliances

The Law Firm Network

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