CORPORATE Private address of the managing director in the commercial register?
As a publicly accessible register, the commercial register fulfills an essential purpose: it should clarify which “flesh and blood” persons are behind a corporation. This transparency intends to protect all those who, for example, conclude contracts with a GmbH or have another legal relationship with such a legal entity.
But are there limits to this principle of publicity? For example, can managing directors of a GmbH (German Limited Liability Company) defend themselves against their private addresses being published in the commercial register for everyone to see – e.g., for data protection reasons or because publication could pose a risk to the person?
The Higher Regional Court (OLG) of Celle (a city in the northern part of Germany) ruled on this (decision of 24 February 2023, case reference: 9 W 16/23). However, the Federal Court of Justice (BGH) will now have to decide on this – the case is currently pending as a legal appeal.
Commercial register regulation provides a framework.
In principle, one special regulation stipulates which entries will be made in the commercial register. Sec. 43 of the Commercial Register Ordinance (HRV) is also relatively straightforward: “… in the case of limited liability companies [the] domestic business address and, if applicable, the surname and first name or company name and legal form as well as the domestic address of a person authorized to receive declarations of intent and service of documents, as well as the establishment or dissolution of branches, stating the place including the postcode …”.
Therefore, the first name and the surname of the managing director and his place of residence, including the town and postcode, as well as his date of birth, must be stated in the commercial register. According to this regulation, the specific residential address or home address does not have to be stated and is, therefore, not public.
It is also essential to know this: Only the details of current managing directors are published in the commercial register. Unfortunately, the commercial register often does not provide information about former managing directors, especially in large cities.
The specific case in court
The managing director of a GmbH had been entered in the commercial register with his first name, surname, date of birth, and place of residence (postcode and town) – under Section 43 HRV.
However, the man disagreed with this. He did not want his place of residence to be published in the commercial register and, therefore, asserted a claim for cancellation under register law.
The reason: the man feared for his safety. Because he was professionally involved with explosives, he was worried that he could become the victim of a kidnapping or robbery if his place of residence were publicly known.
Security concerns of the managing director – not enough
However, the court did not see a right to cancellation under register law concerning the place of residence. Rather, the OLG Celle concluded:
“The managing director of a GmbH has no claim under register law to cancel his already registered date of birth and place of residence from the register sheet of the commercial register.”
The court thought that functional and reliable public registers were essential for the security and ease of legal transactions.
To ensure this in the case of the GmbH and the commercial register entry, the place of residence of the managing director of a GmbH must also be publicly traceable so that business partners, among others, can obtain reliable information. At the same time, the specific residential address (street, house number) cannot be traced anyway because neither is entered in the commercial register.
At the same time, the BGH assumes that the data protection interests of the managing director do not outweigh the public’s interest in a functioning public register.
What the court did not decide, however, was whether the case would be judged differently if the managing director was actually at significant risk and not just feared to be at risk. After all, the managing director had not cited a real danger in this case.
Decision not final
However, this decision is still being determined: the managing director has appealed against the conclusion of the Higher Regional Court of Celle. The BGH (Federal Court of Justice) will, therefore, ultimately have to decide whether the managing director can assert a cancellation claim in this specific case. The expected outcome? Currently still completely open.
As soon as the BGH finalizes this matter, I will update you on this blog.
