Transferring shares in a GmbH: Notary, procedure, costs and shareholders list

How are shares in a GmbH transferred? Through a notarial deed of assignment (§ 15, paragraph 3, GmbHG). Even the underlying purchase or gift agreement requires the notarial form (§ 15, paragraph 4, GmbHG); a contract concluded informally can however be remedied through effective notarial assignment. With respect to the GmbH, the acquirer is only considered a partner if he is listed as a partner in the shareholders’ register kept in the commercial register (§ 16, paragraph 1, GmbHG).

Most enforcement problems do not arise during the certification itself, but rather through overlooked consent reservations, unclear participation relationships, or incompletely coordinated enforcement conditions. These issues are at the heart of our consulting services in the field of enforcement. Commercial and Company Law.

Why a notary is necessary for the transfer of GmbH shares

The GmbH Act distinguishes between two types of business that both require notarization (§ 15 GmbHG):

• Compulsory contract (Section 15, paragraph 4, sentence 1 of the GmbHG): the contract in which the shareholder undertakes to assign his share, for example a purchase or gift contract.
• Dispute settlement (Section 15(3) GmbHG): the assignment itself, through which the share passes to the acquirer.

In practice, both businesses are usually registered in a deed. The formal requirement is intended to make it difficult to conduct light trading in GmbH shares and serves to facilitate evidence collection (BGH, Judgment of 10.03.2008, II ZR 312/06). It does not just include proportion and price: all agreements that are part of the transaction according to the will of the parties must be documented, such as purchase price arrangements, guarantees or return rights. If such a supplementary agreement is not notarized, the entire contractual obligation may be null and void.

Presence date and representation

The assignment of existing business shares in a GmbH cannot currently be registered online. Registration by video communication is only permitted insofar as a law explicitly permits it; this is the case, for example, for the Formation of a GmbH the case (§ 2, paragraph 3, GmbHG), but not for assignment under § 15, paragraph 3, GmbHG.

The parties may be represented at the notary appointment. A power of attorney must, in principle, not have the same form as the legal transaction for which it authorizes the party. For evidentiary, registry, or notary practice reasons, a notarized or notarially certified power of attorney may nevertheless be required in individual cases, or at least advisable. This should be discussed with the notary before the appointment.

Formally agreed upon: Recovery under § 15, paragraph 4, sentence 2 of the GmbHG

If sellers and buyers initially agreed only by email, in private correspondence or verbally, this agreement is void due to formal defects (§ 125 BGB). Neither party can require the transfer or payment under it. However, the law provides for a remedy: The informal agreement becomes valid if an effective, notarially recorded assignment agreement is subsequently concluded (§ 15, paragraph 4, sentence 2 of the GmbHG). Three consequences must be considered:

• The assignment must be effective. If, for example, a required approval required by the statute is missing, the assignment is not yet effective; the healing generally does not occur until the assignment becomes effective.
• The agreement covers the entire healing process. Even informally concluded collateral agreements can become effective in this way, insofar as they form part of the contractual agreement and the parties still adhere to them at the time of assignment.
• The informal agreement does not bind until the injury has healed. Anyone who relies on a non-formal agreement has no enforceable claim from it until the effective assignment. This is not the case with a notarial contract: it can already bind the parties, even if a suspensive condition for the transfer of the share, such as the payment of the purchase price, has not yet occurred. Therefore, with intent declarations and preliminary agreements, it is necessary to determine in advance whether they already constitute a assignment obligation and are therefore subject to registration.

Before the notary appointment: review of the statutes and consents

Many statutes restrict the free transferability of shares. Typical provisions in company agreements and shareholders’ agreements are:

• Binding: Assignment is only effective with the consent of the company, the shareholders’ meeting, or all shareholders (§ 15, paragraph 5 of the GmbHG). Until the assignment is granted, it is invalid on a suspensive basis.
• Pre-emption and preemptive rights: The remaining shareholders are entitled to purchase the share in priority, or the seller must first offer it to them.
• Rights and obligations of co-selling: Regulations that allow or require minority shareholders to participate in the company’s management are often found in shareholder agreements.
• Withdrawal clauses: In the case of certain events, such as a sale without consent or the death of a shareholder, the share can be withdrawn.

Merger control, co-selling rights and withdrawal are common triggers of conflicts between shareholders; more about this in the article Shareholder dispute in the GmbH.

Legal consent requirements

If the seller is a legal party to the joint ownership arrangement, the consent of the spouse may be required (Section 1365 of the German Civil Code). The provision applies to transactions involving the entire assets. According to the case-law, the transfer of an individual item of property can also be considered if it accounts for almost the entire assets and the acquirer knows this or at least has knowledge of the circumstances that justify it. Whether this is the case with a share in a business depends on the specific assets involved and the respective transaction, and should be examined in advance. If a share is to be divided and only partially transferred, the regulations of the articles of association and § 46 No. 4 of the GmbHG must also be observed.

Process of transferring shares

1. Collecting documents: current shareholders' list and extract from the commercial register, articles of association with all amendments, shareholder agreements, and, if applicable, previous assignment documents.
2. Check ownership: Is the seller actually the owner of the share, and is the chain of previous transfers complete? In larger transactions, this is done as part of a due diligence process.
3. Obtain approvals: in accordance with the articles of association, shareholders’ agreement and the law.
4. Negotiating the contract: Purchase price, maturity date, guarantees, cut-off date for profit claims, competition prohibitions.
5. Appointment for emergency: Recording of purchase and assignment agreements. Often, the assignment is conditional on payment of the purchase price, in order to prevent the seller from losing his share of the proceeds before payment is made.
6. Notification to the tax office: The notary sends a certified copy of the document to the competent tax office within two weeks of the notarization (§ 54, paragraph 2, EStDV). This notification does not wait for the payment of the purchase price or the completion of the transaction.
7. List of shareholders: The new shareholders' list follows a different schedule. The notary only submits it once the assignment has become effective; in the case of a conditional assignment, this occurs upon the occurrence of the condition (§ 40, paragraph 2, of the GmbHG).
8. Follow-up: The GmbH is examining whether the information regarding the economically authorized persons should be updated in the transparency register.

What does the transfer of GmbH shares cost?

There are no fixed package prices. The notary fees are regulated by law and are based on the Notaries Act (GNotKG). They cannot be negotiated; their amount depends primarily on the following factors:

• Business value: In a purchase, the higher value is generally decisive: either the purchase price or the value of the share (§ 97, paragraph 3, GNotKG). The GNotKG determines the share value according to its own rules (§ 54 GNotKG). If the purchase price is below this value, the fees are therefore based on the share value.
• Scope of the document: The purchase and assignment agreement, as well as the ancillary agreements notarized therein, are generally considered to be one contract.
• Enforcement and support activities: for example, the creation and submission of the shareholders' register, obtaining consents, or monitoring the payment of the purchase price before the assignment takes effect.
• Draft and certifications: If the notary prepares the draft contract, which he then certifies himself, the draft is generally exempt from the certification fee. Separate fees may apply, for example for certifications or for drafts of powers of attorney and consent forms.

In addition, there may be costs for legal advice, tax review, and, for larger transactions, for a due diligence. A reliable cost estimate can be provided by the notary based on the specific draft contract.

The shareholders' list after the share transfer

The assignment is not entered in the commercial register, and the acquirer himself is not entered in the register sheet. The relevant document is the shareholders’ register, which is included in the register folder at the commercial register. It contains, among other things, the names, birth dates and places of residence of the shareholders, the nominal amounts and the current numbers of the shares, as well as the percentage share (Section 40 GmbHG).

Who is submitting the list?

If a notary has contributed to the change, he/she must submit the list immediately after the change takes effect instead of the managing directors and certify its accuracy (§ 40, para. 2 of the GmbHG). In other cases, such as in the case of an inheritance, the managing directors are responsible (§ 40, para. 1 of the GmbHG); they are liable for culpable breach of duty (§ 40, para. 3 of the GmbHG). For further responsibilities of the management, see our contribution to directors' liability. If a shareholder is a company under civil law, it can only be entered in the list and its registration can only be changed if it is registered in the company register.

What effect does the list have?

In relation to a GmbH, only those who are listed as shareholders in the shareholders' register kept in the commercial register (Section 16(1) of the GmbHG). Legal acts of the acquirer, such as his voting before the takeover, are considered effective from the outset if the list is immediately accepted thereafter. The acquirer is liable for late deposits in addition to the seller (§ 16, paragraph 2 of the GmbHG).

Good faith acquisition

The list also allows, under strict conditions, the acquisition by an unauthorized person (§ 16, paragraph 3 of the GmbHG): The acquirer may acquire a share from a person who is wrongly registered as the holder if the list is incorrect in this respect for at least three years or the inaccuracy is attributable to the true entitled person. The bona fide acquisition is excluded if the acquirer knows the inaccuracy or, as a result of gross negligence, does not know it, or if the list is associated with a counterclaim. Only the trust in the ownership is protected, not the existence of the share or its burden-free status.

Tax review before contract drafting

A share transfer can have tax consequences for the seller, the acquirer, and the GmbH itself, such as for a gain on sale or for gratuitous transfers for the gift and inheritance tax. In the case of major changes in ownership, and especially in GmbHs that own real estate, additional tax issues may arise. These should be examined with a tax advisor before entering into a contract.

Common compliance problems and how to avoid them

Frequently asked questions

Legal basis and case law

• § 15 GmbHG – Transfer of business shares
• Section 16 of the GmbHG – Right of ownership in the event of a change of shareholders; acquisition by an unauthorized person
• Section 40 GmbHG – List of shareholders
• § 167 BGB – Granting of the power of attorney
• Section 1365 of the German Civil Code – Disposition of assets in their entirety
• BGH, Judgment of 10.03.2008, II ZR 312/06 – Purpose of the recording obligation

Read more

• Forming a GmbH in Cologne: Procedure, Costs and Typical Mistakes – how transfer clauses are structured already at the founding stage.
• Shareholder dispute in the GmbH – Collection, exclusion and the importance of the shareholders’ register in a conflict.
• Legal forms compared – why the transfer of shares is more complex depending on the legal form.