On the Scope of the Register Court’s Duty to Examine When Including a Shareholder List in the Register

The Munich Higher Regional Court decided by resolution of January 27, 2026 (file no.: 34 Wx 10/26e) that a Register Court, when accepting shareholder lists, must not review them for substantive correctness, but only for compliance with formal requirements.

The Register Court is merely a custodial body that enables general public access. As such, it has no duty to examine; this duty lies with the managing directors or the notary who submits the shareholder list to the Register Court. Even in the event of a dispute among shareholders regarding the correctness, a suspension of inclusion in the register file is not an option. The deletion of an already included shareholder list is also not possible due to the inclusion not qualifying as a register entry. No ex officio deletion possibilities exist.

Background and Initial Facts

In the decided case, a managing shareholder of a GmbH attempted to prevent the inclusion of a new shareholder list that no longer showed her as a shareholder.

According to the previous shareholder list, she held a share representing 7% of the share capital. In addition, the shareholder list recorded the other managing shareholder with shares totaling 72% of the share capital and a third shareholder with shares amounting to 21% of the share capital.

Even before the submission of a new shareholder list, the managing shareholder informed the Register Court that she was to lose her shares due to a shareholder resolution based on an assigned offer of re-donation in a notarial deed and its acceptance. An interim legal protection proceeding was pending in this regard, with the main proceedings to follow shortly. The offer of re-donation, and thus also its assignment and acceptance, were void. She therefore requested the Register Court not to comply with a potential application for amendment of the shareholder list.

Subsequently, a notary did indeed submit a new shareholder list to the Register Court, which reflected the consequences of the assignment and thus no longer included the managing shareholder. The Register Court then informed the managing shareholder that it intended to include this list in the register file.

The managing shareholder applied to the competent regional court for an interim injunction against the company to withdraw the application for registration and applied to the Register Court for a suspension of the proceedings.

The notary informed the Register Court that the managing shareholder’s application for an interim injunction – with which she sought to prohibit a resolution of consent by the company to the assignment before a decision in the main matter, as well as the submission of a corresponding deviating shareholder list – had been rejected. The notary further stated that the shareholder resolution had been proven to him.

The competent Register Court rejected the application for suspension by resolution and included the new shareholder list in the register file. Argument: It is not a matter of a substantive individual review, but merely of formal correctness. Only exceptionally could it reject inclusion due to obviously incorrect information. This was not the case here.

The appeal lodged by the managing shareholder contained a request to re-interpret the application as an application for ex officio deletion and restoration of the status quo before the inclusion of the new shareholder list. The requirements for an entry in the commercial register were not met. A deletion was also possible for substantive reasons. The entry inaccurately reflected the substantive legal situation, as this was currently unclear and still pending before the regional court as part of the application for an interim injunction.

The Register Court did not grant the appeal. In particular, it stated that there was no entry in the commercial register, but rather an inclusion of the shareholder list in the register file.

The managing shareholder therefore filed an appeal with the Munich Higher Regional Court against the resolution rejecting the suspension.

Legal issues and the decision of the Higher Regional Court

The Munich Higher Regional Court identified two subjects of appeal: first, the explicit appeal against the Register Court’s resolution rejecting the suspension of proceedings, and additionally, the suggestion for an ex officio deletion of the new shareholder list.

The appeal was unsuccessful with regard to both concerns.

Firstly, the OLG confirmed the Register Court’s resolution. It correctly determined that it must only review a submitted shareholder list for formal requirements and then keep it without a substantive review.

This is already evident from the explanatory memorandum of the draft law (on the MoMiG), according to which the list of shareholders is maintained privately and the commercial register is ‘merely a receiving and custodial body that enables general inspection.’

The publicity effects of the shareholder list are also incompatible with a substantive duty of examination on the part of the Register Court.

In the present case, the formal requirements of § 40 GmbHG for the inclusion of the new shareholder list in the register file had been met and were therefore correctly affirmed by the Register Court.

A suspension according to § 21 FamFG is excluded, even if there was a dispute about the effectiveness of the change. The pending dispute is not relevant for the inclusion of the list and therefore not prejudicial, which would be a prerequisite for the suspension of the proceedings.

Whether the Register Court would be allowed to refuse inclusion in the event of certain knowledge of a substantive inaccuracy could remain open in the present case. Since even the managing shareholder assumed an uncertain legal situation regarding the effectiveness of the offer of re-donation, there was certainly no certain knowledge on the part of the Register Court. Such knowledge presupposes that a fact can be established without further ado.

Deletion of the shareholder list is also excluded. Section 395 FamFG allows for the deletion of entries in the register. However, the filing of the shareholder list pursuant to Section 9 HRV does not constitute an “entry,” but merely an inclusion in the register file to enable inspection. In the absence of an “entry,” the principle that the commercial register must ensure the accuracy of entries is also not applicable.

No legal bases exist that would allow for an ex officio removal in cases like the present one.

To prevent a good-faith acquisition in the case of an incorrect shareholder list, one must instead have an objection assigned to the list (§ 16 para. 3 sentences 3 and 4 GmbHG), or enforce the submission of a substantively correct list.

Conclusion and Practical Consequences

The decision of the Munich Higher Regional Court clarifies that the responsibility for the substantive correctness of the shareholder list lies with its creator.

When a shareholder list is submitted, the Register Court only reviews it for formal requirements. This means it checks whether, according to § 40 GmbHG, there is a change in the persons or shareholding ratios, whether the list contains the minimum information (names, first names, dates of birth and places of residence of the shareholders, nominal values and serial numbers of the shares, and percentage holdings), and whether the list was submitted electronically without delay by an obligated person (managing director, § 40 para. 1 GmbHG, or notary, § 40 para. 2 GmbHG).

If, for example, the shareholder list does not contain all the required information or the reason for the change is not comprehensible, the Register Court will reject the shareholder list. However, a rejection of the shareholder list for substantive reasons would lack a legal basis. This means that even a substantively incorrect shareholder list can be included in the register file, as long as the formal requirements are met.

Submitting managing directors therefore cannot rely on the publication in the register file meaning that the new list has been substantively reviewed (liability risk, § 40 para. 3 GmbHG). If, however, the submission is made via a notary because the notary was involved in the changes, the notary has the duty to review the effectiveness of the change and to have circumstances such as representation relationships proven to them.

In practice, in cases of ambiguities or disputes regarding shareholding ratios, it must also be considered that only the formal requirements for the shareholder list are reviewed by the Register Court. It is therefore advisable to have an objection assigned to the shareholder list in the event of disputes.

We would be happy to assist you in legally implementing desired changes in the ownership structure of your company.

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