Who is Liable for Inaccuracy of the GmbH Shareholder List?
If a list of shareholders contains incorrect data, who is the person that can sue for the list to be correct and complete? Being correctly listed in the Commercial Registry is important to exercise one’s rights and duties as shareholder. KG Berlin answered this question on 10 July 2019 (re 2 W 16/19).
Transfer of Shares
The plaintiff was originally a shareholder of a GmbH. The plaintiff transferred his shares based on a certain guarantee to a third party. After alleged fulfillment of this condition, the notary filed a corrected list of shareholders with the Commercial Registry, which identified the third party as the new, sole partner. Later however, the plaintiff considered that the grounds for the transfer of his shares had not materialized and that he was therefore still a shareholder. The plaintiff took this matter to court and filed a complaint against the purchaser. After some hassle, this backend question was clarified during a court hearing. The judge only had to decide on who had to pay the legal fees.
The court held that the company, and not the purchaser, was the correct defendant. The membership relationship of partners exists exclusively between the shareholder and the company, and it is from this relationship that the claim for correction of the list of shareholders arises. The person to sue is, therefore, the company represented by its director.