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Federal Court of Justice decision of 24/07/2015
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In its order of 24/07/2015 (case no. II ZB 12/14), the Federal Court of Justice (BGH) clarified that, following a change of civil-status particulars in connection with gender reassignment, the previously used first name cannot simply be removed from the commercial register. The decisive factor was register proceedings in which an adjustment of the entry was sought.
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Initial situation of the register proceedings
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Registration and requested correction of the register
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The subject matter of the proceedings was a person recorded in the commercial register in an organ capacity. After the first name was changed (in connection with gender reassignment), an application was made to delete the previously used first name from the register or to structure the entry so that the former first name would no longer be visible.
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Conflict between protection of personality rights and register publicity
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The request affected two opposing interests: on the one hand, the need of the person concerned for protection with regard to disclosure of earlier components of the name; on the other hand, the commercial register serves public information and the safeguarding of transparency in legal dealings. In this field of tension, the BGH had to assess whether the register is obliged to completely remove the former first name.
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Key statements of the decision
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The commercial register as an instrument of legal certainty
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The BGH emphasized the function of the commercial register as a reliable source of information for legal dealings. Register entries are intended to enable unambiguous identification and ensure traceability. This also includes documenting changes in such a way that continuity and the ability to link earlier and current details remain discernible.
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No complete elimination of earlier components of the entry
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According to the BGH’s decision, there is no entitlement to completely remove the former first name from the register history. The register-law documentation of changes must not be “cleaned up” in a way that impairs identifiability and the ability to verify matters under register law. The BGH therefore denied that the register court has a duty to restructure the entry so that former first names are no longer visible in the commercial register.
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Classification for commercial and corporate dealings
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Significance for corporate organs and representation relationships
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The decision concerns constellations in which persons are listed in the commercial register as managing directors, members of the management board, or in a comparable position. For legal dealings, it must remain traceable which person held an organ function at what time or was authorized to represent. In the BGH’s view, the traceability of earlier name details can play a role for this purpose.
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Distinction from civil-status law
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The order also makes clear that changes under civil-status law do not automatically lead to a register-law “erasure” of earlier details. While civil-status law governs the change of name, the commercial register follows its own principles, oriented toward publicity, continuity, and protection of legal dealings.
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Concluding remark
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The BGH’s decision illustrates that transparency requirements under register law must be assessed independently in legal terms even in cases of far-reaching personal changes and do not, in every case, yield to the interest in the most comprehensive possible shielding. If questions arise in connection with organ positions, register entries, or their history regarding the scope of register-law details, an assessment based on the applicable standards of commercial register law may be useful. Further information on legal advice in commercial law by MTR Legal Rechtsanwälte can be found at the link provided.
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