The transfer of ownership of shares (Geschäftsanteile) in a German GmbH is one of the most common corporate transactions I handle for Polish clients operating in Germany. This guide covers the key legal requirements and practical aspects of this process.
Notarial requirement
Under German law (§15 GmbHG), the transfer of GmbH shares requires notarial certification (notarielle Beurkundung) by a German notary. This is a mandatory requirement – a share transfer agreement without notarial form is void.
Key steps in the process:
- Due diligence – verify the seller’s title to the shares, any existing encumbrances, and the company’s current status.
- Share transfer agreement – prepared by the notary, containing the terms of the transfer, purchase price, and any warranties.
- Notarial execution – signing before the German notary. Powers of attorney can be used but must meet specific requirements.
- Shareholders’ list update – the notary submits the updated list of shareholders to the Commercial Register.
- Commercial Register notification – the transfer becomes effective vis-à-vis third parties upon registration.
Practical considerations for Polish entrepreneurs:
- Powers of attorney used for the notarial act may require apostille or legalization, depending on the notary’s requirements.
- KYC/AML checks are mandatory for all parties.
- Tax implications in both Germany and Poland must be analyzed (capital gains tax, withholding tax).
- Transfer pricing considerations if the transaction is between related parties.
Paweł Osiński
Attorney, expert in German corporate law and cross-border transactions