On 26 June 2017, the Act on the Implementation of the Fourth EU Anti Money Laundering Directive (AML) entered into force. In addition to the implementation of an electronic Transparency Register, the law also tightened the rules on the list of shareholders of a German Limited Liability Company (GmbH) in order to facilitate the identification of the shareholders. In return, this means further obligations for the management, which have to record changes and register them with the commercial register (Handelsregister).

In accordance with the provisions of the German Companies Act, the Managing Directors shall submit a list of the shareholders, signed by them, to the commercial register immediately after the change in the persons of the shareholders or the extent of their participation. If a notary has been involved, he is obliged to sign the list instead of the Managing Directors and submit it to the commercial register.

If a shareholder is a legal entity, then the name of the company, the company’s registered office, the responsible register and the register number must be included in the list; in the case of unregistered entities (such as a partnership organized under the Civil Code – GbR), the surname, first name, date of birth and place of residence is to be included.

This also means that in the future a change to be notified is automatically given even if a change of shareholders takes place within a Civil Law Partnership which hold an interest in a German GmbH. An exception for publicly held corporations (Publikumsgesellschaft) is not foreseen. In the case of such changes, a notary would not participate as the shares in a Civil Law Partnership or publicly held corporation can be transferred as a private act without the need to meet a notarial form.

According to the explanatory memorandum to the new law, the new regulations for recording in the list of shareholders are expressly applicable also to foreign companies.

This amendment to the GmbH Act entered into force on 26 June 2017. However, the new regulations for „old lists“ only apply in case of a change after this date, that is, correct old lists enjoy grandfathering.

Conclusion: If a notary assists with the changes in the shareholding, the Managing Directors of a GmbH do not face much change. However, in the future, they will have to pay more attention as to whether changes are made if the shareholders are German, unregistered companies (such as the GbR) or foreign companies. In this context, a German notary cannot have a watchful eye on changes.

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