Registering a Foreigner as Director
Is it a prerequisite that a non-EU foreigner must always have the possibility to legally enter Germany in order to be registered as a director of a German corporation? This article relates to the decision of OLG Munich of December 17, 2009 (re 31 Wx 142/09).
A GmbH’s shareholder determined that a Jordanian citizen living in Germany with a toleration should become the second director. Upon notarial application to register the new director, the Commercial Registry complained that this was not permissible, because the appointed director required the permission from immigration to function as a director. A toleration usually does not provide the right to work as (self-)employed. Toleration in terms of residency law means that a person has been instructed to leave the country because any previous residence permit has become invalid but the authority is legally hindered to enforce the departure – i.e. an expulsion is not legally possible. The notary appealed this decision and argued that the list of hindrances to be appointed as a director as mentioned in §6 II GmbHG are final and do not allow any extended application.
The Commercial Registry did not follow the appeal. The registry argued that lacking a work permit is such a hindrance that §6 GmbHG refers to. The Jordanian complained in court against this decision. This lower court had the same opinion as to the registry but with further arguments. The lower court argued that a non-European citizen has to prove that he can enter the country at any given time. The Jordanian however is prohibited to enter the country. The toleration is only a postponed expulsion (§60a I AufenthG). This situation does not ensure that the Jordanian can reenter the country to follow any legal duties as a director. He lacks the right to enter the country.
And again, the Jordanian complained and this time won in the higher court. These judges argued with the reformation of the law on GmbHs, that no foreign director requires the constant possibility to be in Germany because the company’s registered office may be abroad (§4a GmbHG). This legal understanding withdraws legitimacy for any other understanding.
§8 III 2 GmbHG explicitly permits a director to be instructed by a foreign civil law notary or German consular officer. This also shows that the lawmaker did not intend for a requirement of the permanent right to enter Germany in order to be registered as a director. It is also absolutely unimportant whether the appointed director even intends to live in Germany at all.
And the moral of the story? Living in Germany or wanting to live in Germany and being a director of your company are independent of one another. You do not need any further permission to be(come) a shareholder or even a shareholding director. If you want to enter Germany to be present for the notary’s appointment and afterward a bank interview, you will need a business visa – if you do not belong to the visa waiver citizens. And yes, if your company employs you – living abroad – that is just as legal!