Scope of the registry court’s review in the event of a change in management Decision of the Berlin Court of Appeal dated October 5, 2022 – 22 W 54/22
On August 12, 2022, the registry court issued an interim order, stating that the attachment did not satisfy the formal requirements of § 39(2) of the German Limited Liability Companies Act (GmbHG) due to the lack of signatures from the shareholders. The complainant filed an appeal against this interim order on August 29, 2022. The local court did not grant the appeal and referred the matter to the Higher Regional Court for a decision.
Decision
The appeal is admissible and well-founded.
In particular, the appeal is admissible because, pursuant to § 58(2) FamFG in conjunction with § 382(4) sentence 2 FamFG, the appeal is the proper legal remedy against an interim order of the registry court.
The prescribed form and time limit were observed (Sections 64(2) and 63(1) FamFG). The GmbH is entitled to appeal because it is an affected party due to the refusal to register the change in managing director. The value of the appeal has been reached in accordance with § 61(1) FamFG.
The appeal is also well-founded, as the obstacle to registration asserted by the registry court does not exist. Contrary to the registry court’s view, the application for entry in the commercial register, signed by both the former and the new managing director, meets the requirements of § 39(2) GmbHG.
The scope of the registry court’s review encompasses, from a formal perspective, whether the submitted documents are complete and the application is eligible for registration (see KG, in GmbHR 2012, 907), and, in substantive terms, at least whether the change in the person of the managing director is evidenced by the document to be submitted (see KG 16.04.2012 – 25 W 23/12; OLG Hamm, Sept. 7, 2010 – I-15 W 253/10). Pursuant to § 46 No. 5 GmbHG, the decision to change the company’s management rests with the shareholders. Documentation of this resolution must therefore be attached to the application.
Based on these principles, the registry court imposed an examination that was substantively too extensive and, accordingly, an excessive burden of proof on the complainant in the present case. This is because the minutes of the resolution submitted as an attachment, signed by both managing directors, are sufficient for the purposes of documentation vis-à-vis the registry court. In particular, the registry court can verify the proper adoption of the resolution based on the facts stated in the minutes.
The further duty to examine for the purpose of ex officio investigation pursuant to Sections 26, 382 FamFG exists only if the formal requirements for the submitted application for entry in the commercial register are not met or if there are well-founded doubts as to the substantive validity of the submitted resolution. In the present case, neither of these conditions applied; the registry court was not authorized under Sections 26 and 382 of the FamFG to require the complainant to provide further details regarding the resolution. Therefore, the complainant’s refusal to provide such details did not constitute an obstacle to registration.
The interim order was consequently set aside by the Kammergericht.
Classification and Legal Assessment
Without expressly stating so, the judgment addresses the interpretation of the term “document” in § 39(2) GmbHG. This provision requires the applicant to submit documents to the registry court. Unfortunately, the legislature failed to define this term by means of a legal definition. As an undefined legal term, it must therefore be interpreted accordingly by legal literature and case law.
Section 12(2) of the German Commercial Code (HGB) offers a point of reference; as a general provision governing applications for registration, it can be invoked via the reference in Section 8 of the GmbHG to interpret more specific provisions. Although the term “deed” does not appear here, the term “documents” is used repeatedly. In particular, no specific substantive requirements are imposed on the documents to be submitted. The application must merely be sufficiently specific so that the registry can unambiguously identify the applicant’s request. The application is accordingly open to interpretation (see BayObLG Decision of Feb. 22, 1985 – 3 Z BR 16/85, in DB 1985, 1223; Schaub, in EBJS Handelsgesetzbuch, § 12, para. 36 et seq. with further references).
It follows from this systematic comparison with § 12(2) HGB that no heightened substantive requirements are to be imposed on the concept of a document. Provided, therefore, that the general formal requirements for the documents are met, the term “document” does not imply any “additional” evidentiary value or formality. This is confirmed from a doctrinal perspective by the limited review authority of the registry courts under the EHUG (Electronic Commercial Register Act), since even a document signed by the shareholders cannot preclude abuse in the absence of notarial certification.
Therefore, the decision of the Berlin Court of Appeal is to be welcomed. It provides further clarity regarding the scope of review and the enforcement options available to the registry courts. The limited scope of review available to the registry courts regarding the substantive content of resolutions is also important and appropriate in practice. This serves both to expedite proceedings and to ensure legal certainty in business transactions. Companies have a heightened interest in ensuring that their operational business is not delayed by the registry courts. In particular, the appointment of a new managing director is often time-sensitive. A prompt completion of the registration is therefore desirable.
Daniel Bachmann
, Attorney at Law