GER: BGH on the Public Nature of the Commercial Register

Sept 1, 2023 Benn-Ibler Rechtsanwälte

The information contained in the electronic commercial register at www.handelsregister.de is public. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), the register is a reliable and freely accessible source of information.

In the case in question, the district court in the German city of Kempten had refused to grant a succession clause for three enforcement orders because the plaintiff had failed to produce publicly certified extracts from the commercial register despite being requested to do so. Instead, he referred the court to the electronic commercial register.

The regional court also did not consider the legal succession to be obvious under Section 727 of the German Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO), even though the merger of the company had been recorded at www.handelsregister.de. According to the court, the electronic commercial register in question was subject to a fee and was therefore not freely accessible.

The BGH disagreed.

As of 1 August 2022, the electronic commercial register operated by the German federal states as part of a common register portal, Gemeinsames Registerportal, has been accessible to everyone free of charge and without prior registration.

An entry in the electronic commercial register (in this case, the merger of two legal entities) is therefore to be regarded as a generally known fact within the meaning of Section 727 ZPO. The contents of the commercial register is considered to be a reliable source of information and generally accessible.

The lower courts’ objection that only the content of the original register can provide appropriate evidence (which an electronic register supposedly cannot) is not convincing. As far as search results are concerned, the electronic commercial register accesses exactly the same data as the original register does.

According to the BGH, the lower courts’ view that you need a basic understanding of the structure and functionality of this particular website as well as its search options in order to use the electronic commercial register, is no longer in keeping with the times. It is at odds with the widespread use of the Internet as a central information and communication medium in all areas of life.

BGH VII ZB 69/21 (24 May 2023)