Can a shareholder of a GmbH appeal against the decision of the register court? - OLG Düsseldorf of 16.03.2023 - 3 Wx 55/22

Facts of the case

The subject of the dispute was the deletion of a managing director entry in the commercial register. After the death of the testator, who was the sole shareholder and managing director of a GmbH at the time of his death, the 2nd party (his wife) was registered by the local court as the managing director of the GmbH. The inheritance was divided equally between the second party, her two children and the first party, the deceased's son from his first marriage.

The first party wanted to lodge an appeal with the registry court to have the entry of the second party as managing director deleted in accordance with § 395 para. 1 sentence 1 FamFG, as he would not have been involved in the resolution to appoint the managing director.

Verdict

The Düsseldorf Higher Regional Court has already declared the appeal inadmissible because the party re 1. has no right of appeal under § 59 FamFG.

Pursuant to Section 395 para. 1 sentence 1 FamFG, the deletion of an invalid entry in the commercial register pursuant to Section 395 I sentence 1 FamFG is carried out ex officio or at the request of the professional bodies. This also applies to the deletion of void shareholder resolutions entered in the commercial register in accordance with Section 398 FamFG. The individual shareholder of a GmbH does not have the right to file an application.

In principle, the right to appeal could have arisen in accordance with Section 59 (1) FamFG. According to this, the person whose rights are affected by the contested decision has the right to appeal. This requires a direct, detrimental interference with a subjective right to which the appellant is entitled. This requirement is not the case for the registration of a GmbH managing director, as is the case here.

On the one hand, this is not fulfilled, as the entry of a managing director in the commercial register only has a declaratory effect, which serves to disclose facts or legal relationships that arise independently of the entry. Secondly, the power of representation of the managing director of a GmbH does not arise through the entry in the commercial register, but through the shareholder resolution on which the entry is based. Accordingly, there is no infringement of the shareholder's subjective right.

The appointment of a managing director by shareholder resolution can be challenged in accordance with the provisions of Sections 47 et seq. GmbHG by passing a shareholders' resolution to rescind the appointment. The subsequent deletion is then based on this rescinding shareholders' resolution. An incorrect shareholders' resolution can then be defended against with an action for a declaratory judgment in accordance with § 256 ZPO.

In the present case, however, the registration of the second party was lawful, as she was appointed as joint representative of the undivided community of heirs within the meaning of the articles of association with a three-quarter majority - namely with her own vote and the votes of her two children - and in this capacity was then able to validly pass the resolution on her appointment as the new managing director of the GmbH on behalf of the community of heirs.

PBC legal takeaways: It is important to recognize that a shareholder of a GmbH cannot lodge an appeal against a decision of the registry court, as the entry only has a declaratory effect and therefore does not violate the shareholder's subjective rights. Rather, the corporate law route must be chosen here. If you wish to appeal against the registration of a GmbH managing director, we will be happy to advise you.