(1) The representative bodies of each of the legal entities involved in the merger are to file an application for entry of the merger in the register (Commercial Register, register of cooperative societies, company register, register of partnerships or register of associations) kept at the seat of their respective legal entity. The representative body of the acquiring legal entity is entitled to apply for entry in the register of the merger also with the register maintained at the seat of each of the legal entities being acquired.
(2) In filing the application for entry in the register, the representative bodies are to declare that no action has been brought against a merger resolution taking effect, or that any action brought was not brought in due time or was dismissed by a ruling that has become final and binding, or that such action has been retracted; the representative bodies are to notify the court maintaining the register of these circumstances also after they have filed the application for entry. Where no such declaration is available, the merger may not be entered in the register unless the holders of shares who are entitled to bring an action declare, by a notarised declaration of waiver, that they waive bringing an action against the merger resolution taking effect.
(3) It is equivalent to the declaration as stipulated by subsection (2) sentence 1 if, once an action has been brought against a merger resolution taking effect, the court has established by a court order, upon the petition filed by that legal entity against whose merger resolution the action is directed, that the fact of the action having been brought does not contravene the merger’s entry in the register. Unless stipulated otherwise, section 247 of the Stock Corporation Act, sections 82, 83 (1) and section 84 of the Code of Civil Procedure (Zivilprozessordnung – ZPO) as well as the stipulations of the Code of Civil Procedure applicable to proceedings of first instance before the regional courts are to be applied accordingly to the proceedings. A court order as defined in sentence 1 will be delivered if
1. the action is impermissible or manifestly unfounded, or
2. the plaintiff has failed to provide evidence by submitting the corresponding deeds, within one week of the petition having been served, that the plaintiff has been holding a pro-rated amount of at least EUR 1,000 since the notice convening the assembly was published, or
3. the prompt taking effect of the merger appears to take precedence because the court holds, at its discretion and conviction, that the significant disadvantages for the legal entities involved in the merger and the owners of their shares as presented by the petitioner outweigh the disadvantages the respondent stands to suffer; this does not apply if the violation of the law is particularly grave.
In urgent cases, the court order may be delivered without a hearing for oral argument being held. In general, the court order is to be delivered not later than three months after the petition has been filed; the reasons for any delays to the decision are to be provided in a court order that is not contestable. The facts and circumstances brought before the court, by reason of which the court order defined in sentence 3 may be delivered, are to be demonstrated to the satisfaction of the court. A division of the higher regional court in the judicial district of which the company has its seat decides on the petition. Transferring the matter to a judge sitting alone is ruled out; no conciliation hearing is required. The court order is incontestable. Should good cause have been shown for the action, then that legal entity that has obtained the court order will be under obligation to provide compensation to the respondent for the damages that the latter has suffered as a result of the merger having been entered in the register based on the court order; no demand may be made for compensation of the damages being provided by way of removing the effects of entering the merger in the register maintained at the seat of the acquiring legal entity.