In Germany, if a civil law partnership, or GbR, becomes a shareholder in a limited company, or GmbH, not only is this GbR to be added to the list of shareholders, but so too must all partners of the GbR itself. That was the decision reached by Hamm Higher Regional Court (OLG) in its judgment of 24 May 2016 (27 W 27/16).

Grounds: Analogy to a limited partnership

OLG Hamm came to this decision in analogous application of section 162 (1) sentence 2 of the German Commercial Code (HGB). This provision states that where the limited partner in a limited partnership is a GbR, all partners of the GbR must be included in the application for registration on the commercial register. In the case of a GmbH, too, therefore, the requisite greatest possible transparency of the shareholder structure and evidence of the representation of the external GbR in the registration procedure could only be achieved if all partners of the GbR were likewise included (with their names and addresses) in the list of shareholders.

OLG Hamm gave leave to appeal to the Federal Court of Justice (BGH) because it believes the legal question to be of fundamental importance and there have been no supreme court rulings on that matter. The appeal proceedings at the BGH are being held under reference II ZB 12/16.

Our recommendation

Subject to a decision to the contrary by the BGH, we therefore recommend that in addition to the GbR its partners are likewise included with their names and addresses on the list of shareholders of a GmbH of which the relevant GbR is a shareholder.

_

The author: Attorney Dr. Thomas Lotz  is a partner in the law firm TRACC LEGAL in Munich. Dr. Lotz has been advising companies on mergers and acquisitions and on issues of corporate law relating to the restructuring and reorganisation of businesses for 25 years. He can be contacted for personal consultations on +49-(0)89-95 44 302-89 and by email at lotz@tracc-legal.de