1 Information On Percentage Share On Registered Share Capital
The shareholders' list of a limited liability company must now also show for each share the percentage share in the share capital, which is determined by the respective nominal amount of a share in the registered share capital of the company. In addition, the revised version of Section 40 (1) GmbHG stipulates that for shareholders who hold more than one share, the total of their participation must be shown separately as a percentage in the registered share capital. However, any disclosure of indirect participations or indirect control over other shares (such as through voting rights agreements) is not required.
The purpose and background of the amendment is to be able to more easily and quickly identify those shareholders who hold more than 25% of the capital of a limited liability company and thus qualify as beneficial owners. This is to facilitate the use of the Transparency Register, which will also allow access of all shareholders' lists.
2 Additional Changes
In addition, the new version of Section 40 (1) GmbHG contains two further amendments to legally implement an already existing best practice as well as to clarify certain ambiguities, and further, two new paragraphs were added to Section 40 GmbHG:
2.1 If another company is a shareholder of a limited liability company, the shareholder's company name, its registered seat, the relevant register and registration number must be listed in the shareholders' list.
2.2 In the case of unregistered entities as shareholders (for example, civil law partnerships), each individual stakeholder's name, first name, date of birth and place of residence must be specified in the shareholders' list under the name of the shareholder.
2.3 With the newly introduced Section 40 (4) GmbHG the Federal Ministry of Justice and Consumer Protection, subject to approval by the Federal Council (Bundesrat), is authorized to issue an ordinance with more detailed provisions on the structure of the shareholders' list.
2.4 Finally, the new Section 40 (5) GmbHG provides that it can be decided by means of an ordinance that certain information in the shareholders' list must be transmitted to the commercial register in a machine-readable form.
3 Need For Action Only For Shareholders' Lists To Be Submitted In Future
The new provision of Section 40 GmbHG applies to shareholders' lists only if after 26 June 2017 a new list of shareholders has to be submitted due to changes in the shareholders' stock or to the particulars of the shareholders. Based on this statutory transitional regulation (Section 8 of the Introductory Act to the GmbHG) there is no immediate need for action regarding shareholders' lists, which have so far been submitted to the commercial register.
In many cases, transactions which lead to changes in the shareholders of a limited liability company will be recorded by a (German) notary. The notary will then also ensure that the new shareholders' list to be submitted to the commercial register meets the new requirements.
However, there are also numerous constellations where no notary is involved in the relevant process. Particularly in the case of companies with foreign shareholders, restructurings or other measures frequently result in the fact that the shareholders' list of a German subsidiary must also be adapted due to such measures. Also changes in the participation in a civil law partnership being a shareholder of a limited liability company will require that a new shareholders' list must be filed, pursuant to the amendment to Section 40 GmbHG. In such cases, it is the obligation of the company's managing director (Geschäftsführer) to ensure that a revised shareholders' list is filed with the Commercial Register, in future, also taking into account the changes resulting from the implementation of the Fourth EU Anti Money Laundering Directive and the corresponding revision of Section 40 GmbHG.
Client Alert 2017-159
