Fiction: Still a shareholder despite the loss of the share?

It is now more than ten years ago that the German legislator greatly enhanced the importance of the so-called list of shareholders (§ 40 GmbHG) by amending the GmbH Act.

In this respect, the provision in § 16, Subsection 1, GmbHG, according to which in the event of changes in the group of shareholders, only those shareholders who are entered as such in the list of shareholders included in the commercial register are deemed to be shareholders in relation to the company. This is decisive, inter alia, for the question of who is invited to a partners’ meeting and is entitled to vote there. If a GmbH shareholder transfers his or her shareholding to a third party, the previous shareholder must still be invited to shareholders’ meetings, despite the effectiveness of the transfer, as long as no new list of shareholders has been entered in the commercial register.

Until recently, it was not clear whether the provision of § 16, Subsection 1, GmbHG, also applies in the case of a redemption of shares. In the case of a redemption of a share, it does not happen that an existing share is transferred to another. The redemption of a share rather leads to the destruction of the affected company share. Very important voices in the legal literature have expressed the opinion that the provision of § 16, Subsection 1, GmbHG does not apply in the case of a redemption of a share. The argument: § 16, Subsection 1, GmbHG, only concerns the allocation of an existing share, but cannot fake a share that does not actually exist.
In its current decision of 20 November 2018 (II ZR 12/17), the Federal Court of Justice (BGH) has now rejected this view. The BGH decided that the legitimizing effect of § 16, Subsection 1, GmbHG, also applies to confiscated shares.

The decision has a strong impact on tactics in contentious shareholder meetings. For example, a shareholder who has carried out the redemption, will no longer be able to claim that the former owner of the retired share is no longer entitled to vote at the shareholders’ meeting because he is no longer a shareholder as a result of the redemption. It is only with the inclusion of the new list of shareholders, which no longer includes the shareholder in question, that the owner of the redeemed share is no longer a shareholder in relation to the company.