The list of shareholders of a GmbH – A potential source of succession problems

Problem statement

The list of shareholders of a GmbH provides information on the shareholders and the exact ownership structure. This is maintained in the commercial register and it is basically the responsibility of the management to keep the list up to date if no notary is involved. Since the 2008 GmbH reform, this has been of special importance because only shareholders whose names have been entered in the list of shareholders are able to effectively exercise their shareholder rights vis-à-vis the GmbH, thus able to participate in the adoption of resolutions or receive profit distributions (the so-called legitimising effect). This would also apply in the event of the death of a shareholder. A deceased shareholder’s heirs may only exercise their shareholder rights vis-à-vis the GmbH once their names have been entered in the list of shareholders.

A genuine dilemma can arise from such a situation, in particular, where there is a sole shareholding managing director. This is because, on the one hand, with the death there will be no managing director any more who would be able to submit an up-to-date list of shareholders. Moreover, on the other hand, the heirs would not be able to pass a resolution to appoint a new managing director since their names would not have been entered in the list of shareholders.

A temporary managing director for the emergency

However, there is no clear line among the courts as to how such a dilemma can be solved. One option is for the register court, upon request, to appoint a temporary managing director for the emergency who can then submit an amended list of shareholders. Yet, even that is not unproblematic, as a decision by the highest state court for the city-state of Berlin (Kammergericht) of 23.11.2022 (case reference: 22 W 50/22) demonstrated. In the case in question, the life partner of the deceased, upon her own request, was appointed a temporary managing director for the emergency. The complaint that was made against this by the heirs who disagreed was unsuccessful and was rejected by the court with a reference to the fact that their names were missing from the list of shareholders.

Precautionary measures

The best way to prevent the problems outlined above is to appoint another managing director during the lifetime of the first one so that, in an emergency, the company would be able to continue functioning. The scope of functions for the additional executive can, initially, be restricted and be typical of functions that would be required in an emergency situation.

Besides, with respect to the shareholding in the company, it would be advisable to grant a power of attorney so that there would, at least, be clarity with regard to the material authorisation to exercise shareholder rights.

Additional note: Individual shareholders of the GmbH are entitled to have their correct details included in the list of shareholders. However, they cannot demand this of a company’s executives but rather of the company itself. This was recently decided by the Federal Court of Justice in a landmark ruling of 8.11.2022 (case reference: II ZR 91/21). This applies both to the right to have the list amended as well as the preventative requirement of refraining from submitting an incorrect list of shareholders.