Once in the commercial register, always in the commercial register?

Once submitted for registration in the commercial register, documents cannot be redacted or deleted. Publication of the register prevents this. However, since 23 December 2022, documents in the commercial register can be exchanged under certain circumstances.

JUDGMENT OF THE HIGHER REGIONAL COURT (OLG) OF NAUMBURG OF 11 JANUARY 2023 IN CASE NO. 5 WX 14/22

Since 1 August 2022, anyone can view the commercial register for free under www.handelsregister.de. The commercial register has always been open to the public, but users previously had to pay a fee to download documents. Now everything is available for free at just a click. This has minimized the hurdles to viewing the register. Free access applies to all entries in the Commercial, Cooperative Society, Partnership and Associations Registers. It covers all documents submitted to the Commercial Register for registration, regardless of whether the documents were provided to fulfil mandatory legal provisions or went beyond these requirements.

Often, such documents contain sensitive information, which was provided by mistake together with the application for registration in the commercial register, without consideration or sufficient (legal) knowledge of the consequences. Typical examples are the private addresses of shareholders or directors, death certificates, or unredacted minutes of shareholder meetings, which provide much more than the mandatory information for notification. Until now, there has been no legal basis for changing a document or deleting or redacting sensitive information once it has been submitted to the commercial register. Documents placed in the register folder could not be changed or substituted to preserve the verity of the register.

Since 23 December 2022, the Commercial Registries Regulation (Handelsregisterverordnung) has contained a new rule, providing a legal basis for the exchange of documents once they have been placed in the register folder. If an original document contains information, which is not mandatory, it is now possible to exchange this document with one that omits the additional, non-mandatory information.

Upon receiving an application from a notary, the register court will act. The court will note the date of the submission of the original document and the fact that the documents have been exchanged on the new document. This ensures it is obvious that the exchanged document replaced an original document.

It remains unclear whether whole documents can be deleted, where they contain only non-mandatory information. However, the new provision does not allow for changes in the form of redaction or deletion to the document.

The OLG Naumburg recently dealt with the issue of deleting or redacting sensitive information from the commercial register.

Background of the case

The founding shareholders and directors sought the redaction of their signatures on the certificate of incorporation, the application for registration in the commercial registry, the list of shareholders, and the minutes of the resolution appoint the directors – without success. The OLG Naumburg rejected the application.
In its reasoning, OLG Naumburg held that the applicants could not base their request for deletion on either data protection provisions or fundamental rights. Correctly: to preserve the truth of the register, documents placed in the commercial register folder generally cannot be changed. It is not the role of the court holding the register to later interfere with documents once they have been released.

The application for redaction of the signatures can also not be based on the newly introduced § 9 (7) of the Commercial Register Regulation. The applicants have not requested the exchange of any documents falling under the provision, but have instead requested changes to the original documents.

Comments and practical tip

It is now possible to exchange documents containing information that is sensitive and does not require disclosure. However, the court holding the register will not act on its own motion. Affected parties must be active. If you wish to see sensitive information deleted from documents that can be viewed in the commercial register, you should check whether the information requires disclosure. Where and to the extent that this is not the case, you can consider an exchange of documents.

It is not yet clear whether the new provision allows whole documents to be removed from the accessible documents in the commercial register where the document does not contain any information necessary for legal transactions. Whether there is an enforceable claim to an exchange of documents based on fundamental rights is also disputed. The courts have not yet decided this issue. The OLG Naumburg refused to answer this question, leaving it open as it was not relevant to its judgment. It therefore remains to be seen how the register courts will position themselves on this issue. In any case, you should contact the relevant register court to discuss the possibility of a document exchange.

Conclusion: forewarned is forearmed. In the future, when you are drafting documents to be submitted to the commercial register for registration, you should check the information in the documents and limit it to that which is strictly necessary. Where mistakes were made in the past, you should contact the commercial register and apply to have any problematic documents exchanged.

Dr Barbara Mayer
Lisa Werle