Preliminary legal protection in the event of an incorrect list of shareholders

In conflict situations between shareholders of a limited liability company (GmbH), there is a possibility that a shareholder's share may be confiscated. A recent ruling by the Higher Regional Court (Kammergericht, KG) addresses the issue of interim relief if the managing director enters an incorrect list of shareholders in the commercial register shortly after the confiscation.

According to Section 16 (1) of the German Limited Liability Companies Act (GmbHG), a person is only considered the owner of a share if they are listed in the official list of shareholders in the commercial register. This entry has legitimizing effect, regardless of the legal situation. A shareholder who is no longer registered no longer has any claims to shareholder rights, such as challenging shareholder resolutions or filing an action for annulment after a new shareholder list has been added. In this regard, provisional legal protection for the affected GmbH shareholder becomes increasingly important.

There are three relevant points in time for the use of interim relief:

1. Before deciding on the withdrawal of a GmbH share: This option is conceivable, but often unlikely to be successful, as case law intervenes only to a limited extent during this phase of the shareholders' decision-making process. An injunction is only considered if the invalidity of the resolution has already been established and unavoidable disadvantages are imminent.

2. After the resolution on the withdrawal of a GmbH share: Until now, some courts and legal literature have considered the possibility of an interim injunction against the submission of a new list of shareholders after a disputed redemption. However, the Federal Court of Justice (BGH) ruled in 2019 that the affected shareholder needs effective legal protection to protect his or her rights during the dispute over the redemption.

3. After submission/inclusion of a new list of shareholders in the commercial register: The Higher Regional Court (OLG) of Munich ruled that the affected shareholder can obtain an interim injunction ordering the submission of a corrected list of shareholders. The Higher Regional Court (Kammergericht) previously took a different view, emphasizing that the affected GmbH shareholder could obtain the continuation of his position as a shareholder by means of an interim injunction.

The Higher Regional Court (Kammergericht) changed its position in 2023 and now allows for preliminary legal protection against a false shareholder list following a resolution to withdraw a GmbH share. According to the Federal Court of Justice's case law, this provision applies not only to prevent a new shareholder list from being drawn up without the affected shareholder, but also if such a list has already been submitted.

The Higher Regional Court emphasizes that the affected shareholder should be protected by an interim injunction, especially if he or she only becomes aware of the resolutions of the shareholders' meeting later.

This new provision provides clarity regarding the provisional legal protection available to affected shareholders in connection with share redemptions. A prompt response is advisable to prevent the submission of an incorrect shareholder list. An interim injunction could require the company to take appropriate measures.