I. Corporate Law Background

German corporate law imposes a requirement to adhere to an exhaustive list of legal forms for companies; there is a numerus clausus of company forms. However, in practice, company forms have emerged that diverge significantly from their respective standard form. One example is the so-called “Publikums-KG”, a limited partnership open to a broad base of investors, but not publicly listed. Typically a GmbH & Co. KG (a limited partnership with a limited liability company as general partner), it is designed for the admission of numerous limited partners. The shares of the general partner are often held by the initiators, who usually also serve as managing directors of the limited partnership. The investors, the limited partners, are acquired through prospectuses and similar means. As a result, this company, while technically a limited partnership, is economically akin to a corporation. While a close personal connection between the partners is a fundamental characteristic of a limited partnership, the limited partners of such a Publikums-KG are usually connected only by their investment. In response to this atypical structure, the BGH has, through judicial development, created certain special rules for the Publikums-KG.
To facilitate the management of a public limited partnership, investors are often not directly involved as limited partners, but indirectly via a trustee: the actual, direct, limited partner authorizes the trustors to exercise his membership rights, in particular participation in the shareholders’ meeting, to the extent of their trust investment. In most cases, a Publikums-KG has only one or a few direct limited partners, who act as intermediaries for a large number (possibly several thousand) of trustors. According to the Federal Court of Justice, these trust relationships do not exist in isolation from one another, but the trustors form a civil law partnership (Gesellschaft bürgerlichen Rechts) among themselves.
While the shareholders of a partnership registered with the commercial register (such as a German limited partnership) are visible to everyone, this is not the case for the trustors. Furthermore, even for limited partners the commercial register does not contain contact details, preventing direct communication for coordination purposes. In 2009, the BGH established the principle that shareholders in a public partnership have a right to information about other shareholders, as this is an indispensable aspect of their membership rights (BGH, judgement of 21 September 2009 – II ZR 264/08, NZG 2010, 61). In 2011, the BGH extended this right to information to include indirectly involved trustors, provided that their position is comparable to that of a direct shareholder (BGH, judgement of 11 January 2011 – II ZR 187/09, NZG 2011, 276). A request for information directed at a co-partner’s knowledge is limited only by the prohibition of the abusive exercise of rights (section 242 German Civil Code (Bürgerliches Gesetzbuch, BGB)) and the prohibition of chicanery pursuant to section 226 BGB.
Since the German Act to Modernise the Law on Partnerships (Gesetz zur Modernisierung des Personengesellschaftsrechts, MoPeG) took effect on 1 January 2024, section 166 para. 1 sentence 2 of the German Commercial Code (Handelsgesetzbuch, HGB) explicitly provides that a limited partner has the right to request information about company matters from the partnership “insofar as it is necessary for the exercise of their membership rights”. Any contractual provision excluding this right is void under section 166 para. 2 HGB. Thus, the general right to information developed by case law and literature has now been codified.

II. Data Protection Law Background

The information requested by a trustor (such as name and participation amount) constitutes personal data under the GDPR. Processing of such personal data is generally prohibited unless justified by one of the grounds in Article 6 para. 1 subparagraph 1 lit. a–f GDPR. According to Art. 6 para. 1 lit. b GDPR, processing is lawful if “necessary” for the performance of a contract to which the data subject is party. This provision is essential, as an exchange of services is regularly impossible without an exchange of information.
Given that the principles regarding requests for information as outlined in section I above were partly developed before the GDPR took effect, the Munich Local Court questioned their compatibility with EU law and referred (in 2022, before the MoPeG took effect) to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The CJEU held that disclosure of information about all shareholders for the purpose of negotiating the purchase of their shareholdings could not be regarded as “necessary” for performance of the partnership agreement, if such partnership agreement expressly prohibited disclosure to other shareholders (CJEU , judgment of 12 September 2024 – C-17/22, C-18/22, Recitals 61, 65, 73, NJW 2024, 3637).

III. Decision of the BGH

Against this background, the BGH issued its decision (BGH, decision of 22 January 2025 – II ZB 18/23). The underlying facts may be summarized as follows:
The claimant participated indirectly (as a trustor) in two Publikums-KGs. The indirect shareholders were treated as equal to the direct shareholders under the partnership agreements. By counsel’s letter, the claimant requested information from the trustee and direct limited partner (the subsequent defendant) regarding the names, addresses, and shareholdings of the other (indirect) shareholders in order to find out with whom he was “in the same boat” and to make purchase offers to other investors. The defendant refused to provide the information, referring to a survey of the trustors, according to which most investors did not agree to the disclosure of the data.
The Hamburg Regional Court ordered the defendant to provide the information. The Hamburg Higher Regional Court did not allow the defendant’s appeal because the value of the subject matter did not exceed the required EUR 600 threshold, with the court considering the time and expense that providing the information would entail for the defendant to be decisive. The defendant’s legal complaint (Rechtsbeschwerde) was admitted by the BGH for decision due to the fundamental importance of the case, but was rejected:
Anyone who participates in a partnership must expect that their data and their shareholdings will be disclosed to co-partners; no right to anonymity exists in this regard. The BGH states that the trustor has a legitimate interest in being able to exercise his right to information without having to use a channel provided and controlled by the trustee or the company. The trustor is therefore not required to refer to an internet forum (by analogy to section 127a German Stock Corporation Act (Aktiengesetz, AktG)). The nuisance posed to other partners by unsolicited purchase offers is usually only of minor significance.
When assessing the “necessity” required for data processing pursuant to Art. 6 para. 1 subpara. 1 lit. b GDPR, the BGH reviews the reason for the request for information. The BGH distinguishes between whether the request serves to enforce membership rights or is made exclusively for the purpose of submitting purchase offers. In case of an information request for the purpose of enforcing membership rights, the BGH deems direct contact between the shareholders necessary to prevent the risk of influence or delay. Only where the request serves other purposes does the BGH refer to the CJEU’s “forwarding solution”, whereby the shareholder must request the company or the trustor to forward the shareholder’s request for information to the other shareholders so that they can decide on disclosure.
The BGH does not derive consequences for its decision from the CJEU ruling. The BGH deems the facts of the cases not comparable; it was unclear whether the trustors in the case assessed by the CJEU were equivalent to shareholders, and in the case assessed by the CJEU, the transfer of personal data was contractually excluded.

IV. Outlook and Practical Implications

Following this (further) confirmation by the BGH and the amendment of Section 166 HGB through the MoPeG, a right to information regarding shareholders and equivalent trustors in a partnership should be regarded as established. Measured against the requirements for “necessity” specified by the BGH, requests for information should, if carefully worded, usually satisfy Art. 6 GDPR. Reference can always be made to the (additional) purpose of coordination among shareholders and trustors. In addition, the factor deemed decisive by the CJEU – the contractual exclusion of sharing information – is now excluded by Section 166 para. 2 Commercial Code.
Investors should be aware that a Publikums-KG does not provide anonymity vis-à-vis other trustors. The fact that excluding a limited partner’s right to information is now prohibited in section 166 para. 2 Commercial Code will make it considerably more difficult to exclude such requests by means of contract drafting. It is therefore likely that in the coming years it will be necessary to clarify when information requests reach the threshold of abuse of rights.