Invalidity of notarised certification and scope of examination by the registry courts in the case of a notarised list of shareholders

A notarial authentication is also ineffective pursuant to Section 6 (1) No. 4 BeurkG if a third party was authorised by the wife of the authenticating notary as managing director of a GmbH on behalf of the GmbH at the time of authentication. The inclusion of a list of shareholders submitted by the notary in the commercial register can be rejected by the registry court if there is certain knowledge of the inaccuracy without further investigation.

Facts of the case

The sole shareholder of the applicant GmbH was a GmbH. The sole managing director of the applicant GmbH was also the sole managing director of the sole shareholder. The husband of the sole managing director notarised a purchase and assignment agreement relating to the share of the applicant GmbH as well as a shareholders' meeting of the applicant GmbH in which amendments to the articles of association as well as the immediate dismissal of the sole managing director and the appointment of a new managing director were resolved. The sole shareholder was represented by the nephew of the certifying notary, who was authorised by the managing director of the sole shareholder both with regard to the sale of shares and the exercise of voting rights from shares.

On the day of the notarisation, the new managing director registered the dismissal of the previous managing director and the amendments to the articles of association for entry in the commercial register at the same time as his new appointment. The certifying notary also submitted a new list of shareholders for entry in the commercial register. However, the registry court rejected the applications and refused the request to release the list of shareholders.

The appeal lodged against this by the court of appeal was unsuccessful.

Decision of the BGH

The BGH ultimately agreed with the opinion of the court of appeal and dismissed the appeal on points of law lodged against the decision of the court of appeal. In the opinion of the BGH, the Court of Appeal did not err in law in coming to the conclusion that the notarisation of the purchase and assignment agreement relating to the applicant's share was invalid pursuant to Section 6 (1) No. 4 BeurkG. As a result of the invalidity of the notarisation, it is also not possible to include the amended list of shareholders in the commercial register, although this determination is generally not covered by the scope of review of the registry courts.

Ineffectiveness of the notarial certification pursuant to § 6 para. 1 no. 4 BeurkG

The notarisation of declarations of intent is ineffective in accordance with § 6 Para. 1 No. 4 BeurkG if a representative of the persons specified in § 6 Para. 1 Nos. 1 to 3 BeurkG (the notary himself, his spouse, his partner or a person who is or was related to him in a direct line) is involved in the notarisation. § 6 Para. 2 BeurkG clarifies that the persons appearing whose declarations made in their own name or in the name of a third party are to be notarised are involved in the notarisation.

Whether § 6 Para. 1 No. 4 BeurkG also covers cases in which a third party, as in the present case, has been authorised by the notary's wife as the sole managing director of a GmbH not in her own name but in the name of the GmbH, has been judged differently to date. In some cases, this has already been accepted, citing the protective purpose of § 6 para. 1 no. 4 BeurkG, whereas the opposing view has argued that § 6 para. 2 BeurkG only refers to the formal participant and that the legislator has deliberately limited the invalidity of the deed in the interests of legal certainty to cases in which its reason arises from the deed itself.

In its decision, the BGH has now endorsed the former view. In its view, according to the wording of § 6 Para. 1 No. 4 BeurkG, it is important that the representative whose declarations made on behalf are to be notarised acts for one of the persons named in § 6 Para. 1 Nos. 1 to 3. This favours a broad understanding, which is why the case in which the party involved acts on behalf of a third party but derives its powers as a representative of one of the named persons is also covered. In the opinion of the BGH, this also does not undermine the tiered relationship of the restrictions on notarial involvement laid down in the law.

Finally, in the view of the BGH, the meaning and purpose of the provision argue in favour of including the present case of the authorisation of a third party in the scope of application of the standard. In order to avoid circumvention, the regulation should not be limited to cases in which a representative acts on behalf of the notary or a person close to him. Rather, the decisive factor is that the reason for exclusion is circumvented by the involvement of a third party, which is the case when a representative is called in by the notary's wife as the sole managing director of a GmbH, as a conflict of interest and the risk of the notary taking sides are equally present here.

Rejection of applications to the commercial register

In the opinion of the BGH, the registration court was right to reject the applications due to the violation of § 6 Para. 1 No. 4 BeurkG. Since the invalidity of the notarisation resulted in the invalidity of the official act, the purchase and assignment agreement did not comply with the notarial form pursuant to § 15 para. 3, para. 4 sentence 1 GmbHG, so that it was null and void pursuant to § 125 sentence 1 BGB. 

The same applies to the resolutions on the amendments to the articles of association. Although this does not involve the notarisation of declarations of intent, if legal declarations were also notarised in addition to the notarisation of resolutions of the meeting, the notarisation as a whole is subject to the formal requirements for declarations of intent, so that the invalidity consequence of § 6 para. 1 no. 3 BeurkG extends to the entire notarisation. Due to the failure to comply with the notarised form provided for in § 53 para. 3 sentence 1 GmbHG, the resolutions on the amendments to the articles of association were therefore also null and void in accordance with § 241 no. 2 AktG.

Rejection of the inclusion of the list of shareholders

The BGH has so far left open the question of whether the registry courts, in addition to examining the formal requirements of Section 40 GmbHG, also have a limited right to examine the content, according to which the inclusion of the list of shareholders can be refused if the registry court has certain knowledge of the inaccuracy of the content. The higher regional courts have so far assumed this with the predominant agreement of the literature. The opposing view has argued that there is a fundamental interest in the speed of inclusion in the commercial register, so that (often unjustified) objections on the part of the registry courts should not lead to delays in inclusion in the commercial register. 

With the present decision, the BGH now clarifies that the registry courts' right of review is only limited to obvious defects in content of which it has certain knowledge without further investigation. Such certain knowledge is deemed to exist if the registry court is not subject to any doubt in fact or law with regard to the existence of a defect justifying the rejection of the inclusion.

In the view of the BGH, the function of the list of shareholders as a bearer of legal evidence, which requires the swift inclusion of an amended list of shareholders in the commercial register, speaks in favour of the limited scope of the examination. Furthermore, the procedure under register law is only aimed at the receipt and safekeeping of the list of shareholders, not at checking the accuracy of its content. According to the legislator, the responsibility for submitting the list of shareholders lies solely with the notary, who must postpone the submission if there are doubts about the accuracy of the list of shareholders. Nevertheless, as a result of their legal obligation (Art. 20 Para. 3 GG) and the resulting duty to prevent legal violations to the detriment of those affected by the inclusion of the list of shareholders, the registry courts should not be obliged to include an incorrect list of shareholders in the commercial register with their eyes open.

(BGH, decision of 18 March 2025 - II ZB 11/24)