The Federal Court of Justice (BGH) clarifies the substantive and procedural limits of the effect of standing under section 16(1) of the German Limited Liability Companies Act (GmbHG).
Irrespective of substantive entitlement, pursuant to Section 16(1), first sentence, of the German Limited Liability Companies Act (GmbHG), only those persons who are entered as such in the list of shareholders recorded in the commercial register are deemed to be shareholders in relation to the company. Against this background, it has hitherto been a matter of dispute whether a shareholder listed in the register of shareholders also has a legal interest in having their status as a shareholder under substantive law recognised by the GmbH. The BGH has now ruled on this contentious issue in favour of a claimant shareholder.
The claimant had (validly) acquired 75 per cent of the shares in a GmbH and had been entered accordingly in the list of shareholders at the Commercial Register. The defendant GmbH disputed the validity of the share transfer and, on several occasions, submitted lists of shareholders to the Commercial Register which listed a third party as a shareholder in place of the claimant. The claimant challenged this, inter alia, by bringing an action for a declaration, seeking a ruling that he had become the holder of the shares under substantive law.
The Federal Court of Justice upheld the rulings of the lower courts in this respect. It held that the requisite legal interest in a declaratory judgment had been established, as the defendant limited liability company, by submitting lists of shareholders that no longer included the claimant, had made it clear that it did not recognise him as a shareholder. The declaration sought was also capable of removing the resulting uncertainty regarding the claimant’s legal position. This was the case simply because, upon submitting a list of shareholders that deviated from the declaration sought, the limited liability company could not, in good faith, invoke the legitimising effect of Section 16(1) of the German Limited Liability Companies Act (GmbHG). Furthermore, it could have adverse consequences for the shareholder if the company, contrary to the entry on the list, claimed that he was not a shareholder. This could weaken the shareholder’s position within the company or lead to adverse consequences in business dealings, for example when attempting to take out a company-related loan or when selling or encumbering the shareholding. These disadvantages would not be remedied by the formal effect of the list of shareholders alone, which is why the priority of the action for performance would not apply either: A preventive action for an injunction against the submission of a list of shareholders that does not identify the shareholder would not fully satisfy the claimant’s well-founded claim for legal protection.
The Federal Court of Justice’s sound decision rightly strengthens the position of the ‘doubted’ GmbH shareholder: only a positive finding of substantive ownership of the disputed shareholder status is capable of removing any doubt in this regard. Somewhat implicitly, the judgment also offers a pointer for lawyers: when selecting the ‘appropriate’ type of action, one must not lose sight of the doctrine of the subject-matter of the dispute and its implications for the substantive res judicata of the sought-after ruling. For, as is well known, individual preliminary legal relationships do not form part of the substantive res judicata of the judgement; thus, whilst a successful action for payment of the purchase price obliges the defendant purchaser to pay, the validity of the contract of sale is not thereby bindingly established, as it is merely a preliminary issue. Accordingly, in the present case, the preventive injunction referred to by the Federal Court of Justice (BGH) would indeed prohibit the company from submitting a list of shareholders to the Commercial Register that does not include the claimant. However, the risks outlined for the claimant arising from the GmbH’s denial of his status as a shareholder under substantive law would not be eliminated by such an injunction, as the company could still contest the substance of his status as a shareholder. In such cases, the so-called ‘formal effect of legitimation’ of section 16(1) of the German Limited Liability Companies Act (GmbHG), as referred to by the Federal Court of Justice, therefore requires the substantive legal reinforcement of a concurrent declaratory judgement.
(BGH judgement of 21 April 2026 – II ZR 50/25)
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