A German GmbH was incorporated in January 2010 with its seat in Germany. In March, the founding shareholder, pursuant to a notarial deed recorded in Basel by a Swiss notary, transferred his shares in the GmbH to a Swiss citizen. The Swiss notary also revised the list of shareholders showing the new shareholder, which he filed electronically with the commercial register in Germany via a German notary who acted on the notary’s behalf. In August, the German notary, again acting as a messenger for the Swiss notary, submitted a revised list of shareholders in the GmbH showing a German citizen domiciled in Basel as the shareholder.
The commercial register refused to accept the revised list of shareholders on the grounds that the transfer of shares was invalid because the German Law on Limited Liability Companies (GmbHG), after the introduction of the Act on the Modernization of the Law Governing Limited Liability Companies and to Combat Abuses (MoMiG), required the recording to be made by a German notary. The GmbH and the new shareholder appealed the commercial register’s rejection of the revised shareholder list.
The Higher Regional Court (OLG) of Düsseldorf accepted the appeal and suspended the refusal by the commercial register to accept the revised list of shareholders. In its decision, the court confirmed the validity of a deed on the transfer of shares in a German GmbH recorded before a Swiss notary in Basel. The OLG’s decision is in direct opposition to a 7 October 2009 decision of the regional court of Frankfurt (case reference: 3-13 O 46/09) and it reinstates previous jurisprudence of the Federal High Court (BGH) that applied before the MoMiG was introduced.
Although the decision of the OLG Düsseldorf has been welcomed by the professional community, legal certainty on the issue will be established only by a decision of the BGH related to a time period after the introduction of the MoMiG.
If you have any questions, please contact Dr. Tim Luthra of Raupach & Wollert Elmendorff Rechtsanwaltsgesellschaft mbH.
