date | theme

17. January 2020 | GmbH shareholders: Managing Director salary or profit distribution?

13. January 2022 | External Managing Director of a GmbH as an employee? Tax/employment/activity assessment

20. May 2022 | List of shareholders at the GmbH and their legitimacy (§ 16 GmbHG)

07. September 2022 | How to bring in the share capital when founding a GmbH

13. May 2023 | Challenge of shareholder resolutions at the GmbH (this contribution)

Shareholder resolutions are regularly erroneous. Nevertheless, they are in principle effective unless they are exceptionally null and void. The shareholders will then only have a right of challenge. What shareholders must consider when challenging a shareholder resolution is explained below.

By challenging a shareholder resolution, it is retroactively destroyed by the granting appeal judgment. The challenge to a resolution is regulated for Aktiengesellschaft (AG) in § 248 AktG. These regulations are generally applied analogously to the GmbH. However, the voting process at the GmbH should not be subject to the same high requirements for the organization as that at the Aktiengesellschaft. As the organisation and the procedure are therefore not so strictly regulated, the challenge is less well-founded. The challenge is subject to stricter conditions. The regulations for the AG are therefore modified.

The challenge to a shareholder resolution of the GmbH is subject to strict conditions. The shareholder must first be entitled to challenge. Any deficiencies in the decision which have not already led to the annulment of the decision may give rise to a challenge. This therefore includes substantive or procedural violations of the law or the social contract. Therefore, violations of morality, the principle of equal treatment or the commitment to the purpose of the company can also be reprimanded. Serious errors lead to the invalidity of the shareholder resolution. They therefore no longer have to be contested, but are immediately ineffective.

According to § 255 paragraph 2 AktG, a resolution on effective capital increases with exclusion of subscription rights is also countervailable in the case of unreasonably low expenditure amounts or minimum amounts. This regulation applies accordingly to the GmbH. The challenge to the establishment of the annual financial statement is unlimited in the GmbH. The restriction under shareholder law in § 257 (1) sentence 2 AktG is not transferable to the GmbH due to the lack of a comparable distribution of competences of the bodies. Typical errors are undervaluations and the omission of required provisions and the overrun of valuation margins.

Procedural deficiencies must be relevant to the outcome of the resolution in order to contest a shareholder resolution. In principle, the question is whether the violation of procedural rules has led to a sufficiently serious legitimacy deficit when the voting process is considered ideally. The decisive factor, therefore, is whether it is possible or excluded – from an assessment point of view – that the procedural error has had an impact on the decision result. Practically regularly occurring procedural deficiency is the missing or incorrect information and the violation of the right of access of the shareholder. Therefore, the shareholder decision is countervailable in this case if the information was necessary for an objectively judging average shareholder. It therefore depends on whether the procedural deficiency committed affects the information interest or participation interests of those entitled to participate and vote. Whenever the procedural error resulted in not all shareholders being able to participate properly in the decision-making of the company, contestability is given.

Procedural shortcomings also include simple conscription errors. This includes, for example, the violation of the legal loading period or the loading at unreasonable places or at unreasonable times. Procedural errors in implementation include, for example, infringement of the right to participate and speak, deviation from the agenda or improper influence on the vote. Errors in decision-making, for example the non-counting of effective votes or the counting of invalid votes, can only be made by means of an appeal.

He must also not have lost his challenge power. This is done regularly through the support vote. It would be untrue to the shareholder in this case still a right to challenge. Furthermore, the shareholder must have been infringed and he must not have waived the complaint. Finally, the action must be filed within the time limit for the action. An objection to the protocol during the resolution is not a prerequisite at the GmbH, unlike at the AG.

The problem is in particular if a deficiently summoned partner complains of the infringement of participation rights of a co-partner. Then the other shareholders could be violated in their right to debate and debate even with the unlawfully excluded shareholder. However, jurisprudence does not clarify to what extent third-party infringements and consequential deficiencies can be reprimanded. According to recent jurisprudence, the shareholder is then not entitled to challenge.

Furthermore, it is controversial whether the shareholder’s right to question has an exclusively individual character or whether it also serves the collective decision-making of the shareholders’ meeting.

A shareholder must ask questions at the general meeting, which gives the right to ask questions collectively. The general meeting can then consider the question. This can influence decision-making. In the case of the AG, it is therefore argued that a shareholder question must also be answered if the questioning shareholder has left the meeting (in which an implied withdrawal of the question is seen), as long as the general meeting has not been informed that such a withdrawal has been declared. Because only the hint allows the other shareholders to make the question their own. Only then should the cure of the lack of challenge occur. As a precautionary measure, the other shareholders should therefore always make the question their own in such a case.

In practice, you should also complain about information deficiencies as a precautionary measure. The reason for this is that at the AG the shareholder is said to have forfeited his right of challenge if numerous questions were asked, so that it is obvious that his question has merely disappeared. The same also applies if the Executive Board or the meeting leader explicitly asks whether questions have not yet been answered and the shareholder does not reprimand the lack of clarification.

The challenge of a shareholder resolution may be excluded. However, this is only possible for violations of dispositive law. In addition, regulations in the statutes can be declared mere regulatory provisions that do not entitle them to challenge.

If a shareholder resolution is only contestable, it is legally valid and therefore to be treated as valid until the annulment by a court order.

For the execution of the shareholder resolution by the managing directors, however, not only the challenge brought, but also the challengeability as such – insofar as the challenge is to be expected – can constitute an obstacle, which must be assessed at dutiful discretion.

The registry court must in principle register non-contested orders. Contested shareholder resolutions, on the other hand, may only be registered in accordance with due discretion with regard to the prospects of success of the challenge, which are to be examined by the registrar judge on his own responsibility. If the prospects of success are difficult to assess, the registry court may suspend the registration. The same applies if not the decision as such, but its legal consequences are to be entered. This includes, for example, the appointment or removal of a managing director.

GmbH – Taxation

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