Registration of managing directors and auditing competence of the commercial register
Court of Appeal decision of 05.10.2022 - 22 W 54/22
Scope of review by the registry court in the event of a change of managing director
Facts of the case
The appellant GmbH has been entered in the commercial register of the Charlottenburg Local Court since 2017. With a notarized commercial register application dated 05.07.2022, the new managing director applied for the dismissal of the old managing director and his appointment as a managing director with sole power of representation and exempt from the restrictions of Section 181 BGB. This application was accompanied by the minutes of the corresponding circular resolution of the shareholders dated 01.07.2022, which was signed by the new and the old managing director.
On 12.08.2022, the registry court issued an interim order on the grounds that the attachment did not meet the requirements of Section 39 (2) GmbHG due to the lack of signatures of the shareholders. The complainant lodged an appeal against this interim order on 29.08.2022. The appeal was not upheld by the Local Court and was referred to the Court of Appeal for a decision.
Decision
The appeal was admissible and well-founded.
In particular, the appeal was admissible because, pursuant to Section 58 (2) FamFG in conjunction with § Section 382 para. 4 sentence 2 FamFG, the appeal would be the admissible legal remedy against an interim order of the registry court. The right to appeal would exist due to the refusal to register the change of managing director.
The appeal was also justified, as the obstacle to registration asserted by the registry court did not exist. Contrary to the opinion of the registry court, the commercial register application signed by both the old and the new managing director complied with the requirements of § 39 Para. 2 GmbHG.
The scope of the register court's examination includes, in formal terms, whether the documents submitted are complete and the application is registrable (see KG, in GmbHR 2012, 907) and, in material terms, at least whether the change in the person of the managing director can be proven by the document to be submitted (see KG 16.04.2012 - 25 W 23/12; OLG Hamm of 7.9.2010 - I-15 W 253/10). The shareholders are entitled to change the management of the company in accordance with § 46 No. 5 GmbHG. Documentation of this resolution should therefore be attached to the application.
On the basis of these principles, the registry court carried out too extensive a substantive examination and imposed too extensive a burden of proof on the appellant. The minutes of the resolution submitted as an attachment, signed by both managing directors, were sufficient for the documentation vis-à-vis the registry court. In particular, the registration court could check the proper adoption of the resolution by means of the facts stated in the minutes.
The further duty to examine the official investigation pursuant to Sections 26, 382 FamFG only exists if the formal requirements for the submitted commercial register application are not met or if there are reasonable doubts about the material validity of the submitted resolution. Neither was the case in the present case. The registry court was not entitled under § 26, 382 FamFG to demand a further explanation of the resolution from the complainant. Therefore, there was no obstacle to registration due to the complainant's refusal to provide this.
The interim order was therefore revoked by the Court of Appeal.
Classification and legal assessment
Without expressly stating this, the ruling deals with the interpretation of the term "document" from § 39 Para. 2 GmbHG. § Section 39 (2) GmbHG requires the submission of documents by the applicant to the register court. Unfortunately, the legislator failed to provide a legal definition of this term. As an undefined legal term, it must therefore be interpreted accordingly by the literature and case law.
Section 12 (2) HGB offers a point of reference, which can be used as a general standard for the interpretation of more specific standards via the reference from Section 8 (5) GmbHG. Unfortunately, the term "deed" does not appear here, but the term "documents" is used repeatedly. In particular, no specific content requirements are placed on the documents to be submitted. The application must merely be sufficiently specific so that the register can clearly identify the applicant's request. The ability to interpret the application is also derived from this (see BayObLG decision of 22.2.1985 - 3 Z BR 16/85, in DB 1985, 1223; Schaub, in EBJS Handelsgesetzbuch, Section 12, para. 36 f. with further references). N.).
For the present case of the KG, it follows from the systematic comparison with § 12 para. 2 HGB that no increased content requirements are to be placed on the term "document". Insofar as the general formal requirements for the documents are complied with, no "more" evidential value or formality follows from the term "document". This result is underpinned by the legislative decision to continue the limited control of the registry courts under the EHUG (Electronic Commercial Register Act).
The decision of the Berlin Court of Appeal is therefore to be welcomed. It provides further clarity with regard to the scope of the review and the registry courts' options for making claims. The fact that the registry courts only have limited review options with regard to the material content of resolutions is also important and correct in practice. This serves both to speed up and to ensure legal certainty in business transactions. Companies have an increased 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. It is therefore desirable that the entry is completed quickly.
Status: 10.07.2023