Rulings on Transparency Register Law

Below you will find one of the most comprehensive and up-to-date collection of interesting judgments of recent years on transparency register law. You can find further judgments in corporate law on other corporate law topics on the overview page.

The judgments are updated continuously.

You can use our search function to enter a search term and navigate to the respective hits using the arrows. 

Failure to notify the beneficial owner to the transparency register - recklessness in case of breach of duty to inquire

Cologne Higher Regional Court 2020

1. the conditions under which a reckless failure to report the beneficial owner to the transparency register may be assumed.

(2) Recklessness refers to an increased degree of negligence, which corresponds approximately to gross negligence under civil law, but is based on the personal abilities of the perpetrator. It exists if the perpetrator acts grossly carelessly and disregards what should have been obvious under the conditions of his knowledge and abilities. In this respect, a strict standard is to be applied.

(3) Anyone exercising a specific professional or other activity has a duty to keep abreast of the relevant regulations concerning the field of activity in question. The measures to be taken for this purpose are a question of the individual case (e.g. regular reading of the promulgating journals, use of relevant information services, provision of legal advice, establishment of a separate legal department). A reckless breach of the information obligations - especially with regard to the notification to the transparency register - is deemed to have occurred if the responsible party does nothing at all or does something obviously unsuitable to comply with them.

No entry of the German branch of a foreign general partner in the commercial register

OLG Braunschweig 2020

(1) Neither the law on commercial registers nor the law on transparency registers provides that only or also the register number of a legally dependent (here: German) branch of the general partner is to be entered in the commercial register of a limited partnership instead of or in addition to the register number of its (here: Dutch) general partner.

2) Insofar as the information on the beneficial owner within the meaning of § 19 (1) AMLA cannot be derived from the commercial register of a limited partnership, it is in any case not to be supplemented there; it is at most - which was not to be decided here - to be reported to the transparency register pursuant to § 20 (1) sentence 1 AMLA, as amended.

Settlement of an appeal for the inclusion of a list of shareholders in the register after the inclusion of a later list

Düsseldorf Higher Regional Court 2020

(1) The inclusion in the register file of a list of shareholders merely supplemented by the information to be provided since 26 June 2017 following the entry into force of each change as a result of the new version of section 40 GmbHG is not (no longer) possible after the submission of a list of shareholders that is linked to the original list, documents changes that have taken place (purchase of a share) and complies with the requirements of section 40 GmbHG. (para. 14)

(2) If, after filing the appeal against the rejection of the application for the inclusion of a list of shareholders in the main proceedings, the matter is settled (inclusion of a subsequent list of shareholders in the register), the appeal shall become inadmissible if - as in the present case - neither a case under § 62 (1) of the Family Proceedings Act is present nor the company as appellant - after having been notified of the settlement - has limited its appeal to the point of costs.

Updated list of shareholders without changes in the persons of the shareholders or the extent of their shareholdings

Düsseldorf Higher Regional Court 2020

(1) On the admissibility - advocated by the Senate - of submitting a list of the shareholders of a private limited company that does not result from changes in the persons of the shareholders or the extent of their shareholdings and that complies with new statutory requirements (here: Submission of a list of shareholders from January 2020 with details extended in accordance with the new version of § 40 (1) GmbHG to the Commercial Register in the form of an addition to the list of shareholders last entered in paper form in May 1999 to the Commercial Register by the percentage of the shareholding and the date of birth of the shareholder).

2. even without changes in the persons of the shareholders or the extent of their shareholdings, an updated version of the list of shareholders previously kept in paper form with the information extended in accordance with the new version of section 40 (1) GmbHG may be submitted to the commercial register for inclusion in the register file if the information required in accordance with section 20 (1) GwG has neither been communicated to the transparency register nor can it be retrieved electronically from the commercial register.

Permissible "without cause" submission of a new list of shareholders to the commercial register

Düsseldorf Higher Regional Court 2020

(1) The register court may not refuse to include the list of shareholders in the register file on the grounds that a case under § 40 (1) GmbHG does not exist. The fact that an up-to-date list of shareholders must be submitted to the commercial register in the cases regulated by law there does not necessarily mean that it may only be submitted then and not in other cases as well. 

Pursuant to Section 20 (1) AMLA, legal persons under private law shall immediately notify the information on beneficial owners listed in Section 19 (1) AMLA ... for entry in the transparency register. According to the transitional provision in Section 59 (1) AMLA, the notification had to be made to the Transparency Register for the first time by 1 Oct 2017. Pursuant to Section 20 (2) no. 1 AMLA, the obligation to notify the transparency register is deemed to have been fulfilled, inter alia, if the required information can already be obtained from documents and entries that can be retrieved electronically from the commercial register.

3. if the company involved has so far neither communicated information for entry in the transparency register pursuant to section 20 (1) GwG, nor is the information required thereunder so far retrievable electronically from the commercial register, it appears sensible, or at least permissible, even without changes in the persons of the shareholders or the extent of their participation, to submit an updated list of shareholders with the information extended pursuant to the new version of section 40 (1) GmbHG to the commercial register for inclusion in the register file.

Reasonable specialist legal protection against a legal norm subject to criminal penalties or fines (Money Laundering Act)

BVerfG 2018

1) The general duty of due diligence objected to by the complainants in Section 10 (1) no. 4 AMLA, according to which it must be determined by means of an "appropriate, risk-oriented procedure" whether the contracting party or the beneficial owner is a "politically exposed person", a family member of such a person or a "person known to be close to such a person", and the associated duties under Sections 11 (1), (4) and (5) AMLA, in particular the enhanced duties of due diligence in Section 15 (1), (2), (3), (4), (7) and (9) AMLA, contain a large number of interpretations. 1, 4 and 5, Section 13 (1) AMLA, in particular the enhanced due diligence obligations in Section 15 (1), (2), (3), (4), (7) and (9) AMLA, contain a large number of legal concepts that require interpretation and whose regulatory content must first be clarified under simple law. In this respect, the specialised courts must also clarify, for example, the factual basis on which those obliged under the Money Laundering Act are to examine whether a person is a "politically exposed person". In this context, the questions raised by the complainants as to a reliable procedure for determining whether a person is politically exposed and as to any measures that go beyond the information provided by the transparency register must also be clarified.

2 Further obligations specifically affecting the complainants also contain numerous terms whose meaning only becomes apparent through an interpretation by the specialised courts: "appropriate means", "beyond doubt", "appropriate time interval" (Section 10 (1) Nos. 2, 3 and 5 AMLA), "low risk" of money laundering (Section 11 (1) sentence 2 AMLA), "appropriate measure to ensure the risk" (Section 11 (5) sentence 3 AMLA). 1 sentence 2 AMLA), "appropriate measure to ascertain risk" (Section 11 para. 5 sentence 3 AMLA), "appropriate verification" of the document presented on the spot (Section 13 para. 1 no. 1 AMLA), "low risk" (Section 14 para. 1 sentence 1 AMLA), "reasonably reduce", "credible and independent source", "suitable for verification", "unusual or suspicious" transaction (Section 14 para. 2 sentence 1 nos. 1 and 2, sentence 2 AMLA), "higher risk" of money laundering or terrorist financing (Section 15 (2) AMLA), "particularly complex or large", "unusually proceeding", without "obvious" economic or legitimate purpose (Section 15 (3) no. 2 AMLA), "appropriate measures" (Section 15 (4) sentence 1 No. 2 AMLA), "higher risk" (Section 15 (5) No. 2 AMLA) as well as "taking into account the risk specific to politically exposed persons" or "appropriate and risk-oriented measures" (Section 15 (7) AMLA).