Formal Shareholder Status as the Benchmark for Status Assessment
By judgment of 27 January 2026, the Landessozialgericht Baden-Württemberg (LSG Baden-Württemberg, Higher Social Court of Baden-Württemberg) held that, when assessing the social security status of a shareholder-managing director of a GmbH (German limited liability company), the shareholder list included in the commercial register must be relied upon. Accordingly, the decisive factor is the extent of the shareholding shown there. According to the decision, this also applies where the relevant shareholder list had already been included in the register folder before the Act to Modernise the Law on Limited Liability Companies and Combat Abuses entered into force.
The decision was issued under case no. L 13 BA 1457/25. It concerns the distinction between dependent employment and self-employment in the case of a shareholder-managing director of a GmbH within the meaning of § 7 Abs. 1 SGB IV (Fourth Book of the German Social Code) and the significance of the legitimising effect under § 16 Abs. 1 GmbHG (German Limited Liability Companies Act).
Facts of the Proceedings before the LSG Baden-Württemberg
Position as Managing Director and Shareholding Structure
The joined party had been the sole managing director of the claimant GmbH since 11 May 2005. According to the shareholder list from 1996 contained in the register folder, the joined party’s father held 75 percent of the share capital, while the joined party held a 25 percent interest.
With effect from 30 April 2005, the father transferred his shares to the joined party. However, an amended shareholder list was not filed with the commercial register. As a result, the list included in the register continued to show the joined party as holding a 25 percent interest.
Company Audit and Subsequent Contribution Assessment
Following a company audit carried out at the claimant, the defendant authority determined by notice of 19 February 2024 that the joined party had been in a dependent employment relationship at least since 1 January 2018. At the same time, contributions and levies for his activity were assessed retroactively.
The claimant’s objection was unsuccessful. The action before the Sozialgericht Freiburg (Social Court of Freiburg) was also dismissed. The claimant appealed against this decision to the Landessozialgericht Baden-Württemberg.
Decision of the Landessozialgericht
Claimant’s Appeal Unsuccessful
The Landessozialgericht dismissed the claimant’s appeal. In the court’s view, the defendant’s notice was lawful and did not infringe the claimant’s rights.
For the status assessment of a GmbH managing director who also holds an equity interest in the company, the extent of the capital participation and the resulting ability to influence the company are of material importance. Self-employment can only be assumed if the managing director has sufficient corporate-law authority.
Requirements for the Authority of a Shareholder-Managing Director
According to the decision, shareholder-managing directors generally have the legal authority required for self-employment only if they hold at least 50 percent of the shares in the share capital. In the case of a smaller shareholding, corresponding authority may exist if a comprehensive blocking minority has been granted that relates to the company’s entire business activities.
This authority must be conferred under corporate law. In addition, the court emphasised that the question of compulsory insurance must be capable of reliable assessment at the start of the activity, both in the interests of the insured persons and of the social security institutions.
Significance of the Shareholder List under § 16 Abs. 1 GmbHG
Formal Legitimising Effect Also in Social Security Law
The Landessozialgericht relied on the formal legitimising effect of the shareholder list under § 16 Abs. 1 GmbHG. For the social security status assessment, it is therefore decisive which shareholding structure is apparent from the shareholder list included in the commercial register.
According to this assessment, the actual transfer of shares on the basis of an assignment agreement was not sufficient as long as it had not been made public through an amended shareholder list included in the register folder. The court therefore regarded the joined party, for the purposes of the social security assessment, as a minority shareholder-managing director without a comprehensive blocking minority.
Application Also to Older Shareholder Lists
The LSG Baden-Württemberg saw no social security law concerns regarding the application of the legitimising effect also to shareholder lists that had been included in the register folder before the MoMiG (Act to Modernise the Law on Limited Liability Companies and Combat Abuses) entered into force. The shareholder list from 1996 therefore also remained decisive for the assessment.
In the court’s view, the defendant and the Sozialgericht Freiburg had therefore correctly relied not on the assignment agreement, but solely on the shareholder list that had been filed.
Classification within the Case Law of the Bundessozialgericht
Decisiveness of the Registered Shareholding Structure
The decision of the LSG Baden-Württemberg is consistent with the case law of the Bundessozialgericht (BSG, Federal Social Court). The Bundessozialgericht has already held that, for determining the legal authority of a GmbH shareholder, it is not the substantive legal entitlement that matters, but the extent of the shareholding apparent from the shareholder list included in the register.
The leading decision of the Bundessozialgericht relied upon by the LSG, dated 13 March 2023, bears the official case no. B 12 R 4/21 R. In that decision, the Bundessozialgericht based the decisiveness of the shareholder list for purposes of social security status assessment on the legitimising effect of § 16 Abs. 1 GmbHG.
No Different Assessment for Lists Filed before the MoMiG
According to the case law of the Bundessozialgericht, shareholder lists filed before the MoMiG entered into force also have corresponding significance for social security law purposes. The status as shareholder as such, or an increased extent of participation, is therefore taken into account only once it has been made externally apparent by means of a shareholder list included in the register folder.
The decision of the LSG Baden-Württemberg applies this line of reasoning to the specific case. The list that showed the joined party as holding only a 25 percent interest therefore remained decisive.
Distinction from Other Register-Related Circumstances
Not every circumstance that is relevant to the corporate-law position within a GmbH is, for social security law purposes, dependent in the same way on publication in the commercial register. The Bundessozialgericht has since clarified that other circumstances may also be taken into account without registration in the commercial register if their registration does not have constitutive effect under corporate law and does not have a legitimising effect comparable to § 16 Abs. 1 GmbHG.
This concerns in particular:
- the appointment of managing directors,
- the removal of managing directors,
- circumstances for which company law does not provide for a comparable register-related legitimising effect.
By contrast, for the shareholding structure in a GmbH, the shareholder list included in the register folder remains the central point of reference for the social security law assessment.
Further Development of Status Case Law
The classification of GmbH shareholder-managing directors under social security law remains the subject of case law. In 2026, the 12th Senate of the Bundessozialgericht will address, in another set of proceedings under case no. B 12 BA 10/24 R, the compulsory social security coverage of GmbH shareholder-managing directors in the case of equal capital participation and a casting-vote provision.
This further set of proceedings forms part of the ongoing clarification of the case law on status. No statement as to its outcome is associated with this.
Significance for GmbH Shareholders and Companies
The decision makes clear that, when assessing the social security status of a shareholder-managing director, the formal position under register law can carry considerable weight. According to the line of authority confirmed here, a transfer of shares that has already been substantively completed takes effect for the status assessment only once it is reflected in the shareholder list included in the register folder.
For companies, investors and shareholders, the precise classification of shareholding and influence structures in relation to GmbH managing directors can be of considerable importance. MTR Legal Rechtsanwälte advises on questions relating to the corporate-law structure, corporate officer status and shareholding structures; further information can be found under Legal advice in corporate law.
