The shareholders' meeting is the central body of a GmbH in which important business decisions are made. Both the organization and the implementation require careful preparation and legal expertise. Professional support from a Specialist lawyer for commercial and corporate law can ensure that all legal requirements are met and possible risks, in particular the invalidity and contestability of shareholder resolutions, are minimized.
The importance of the shareholders' meeting for the GmbH
In one GmbH The shareholders' meeting is the highest decision-making body. It appoints and dismisses the managing directors. The shareholders' meeting also issues instructions to the managing directors, which the managing directors of a GmbH - in contrast to the board of directors of an AG, which is not subject to instructions - must always implement, provided that the instruction is not itself unlawful. The shareholders' meeting can make decisions in all matters that it takes upon itself. The legal regulations in the GmbHG provide for some mandatory decision-making powers, such as the approval of the annual financial statements prepared by the management, the appropriation of profits and the granting of discharge to the managing directors. Fundamental decisions are made at the shareholders' meeting that have a significant impact on the future direction and strategy of the company. Whether it is the election of the management, the amendment of the articles of association or the adoption of the annual financial statements - the shareholders' meeting is the forum in which these decisions are made.
The organization and implementation of a shareholders' meeting are therefore of central importance and require precise planning. This includes both the convening of the meeting and the legally secure drafting and documentation of the resolutions passed.
shareholders' meeting - right of convening
As a rule, the management will convene the shareholders' meeting. An ordinary shareholders' meeting must take place at least once a financial year to decide on the approval of the annual financial statements. However, the GmbH Act also gives minority shareholders the right to convene a meeting. Shareholders whose shares together mathematically correspond to at least 10% of the share capital are entitled to request that the meeting be convened, stating the purpose and reasons. This does not mean that the minority shareholders can convene the meeting themselves. They must contact the managing directors. If the managing directors do not comply with the request to convene a meeting, they are liable for damages.
If this is provided for in the partnership agreement, the shareholders or the advisory board may have the authority to convene a meeting.
Form and time limits for the shareholders' meeting
It is imperative that the shareholders' meeting is convened in a timely and formal manner. The invitation is usually sent by registered letter, which contains the date, location and agenda of the meeting. Compliance with the deadlines set out in the articles of association is essential to ensure that the resolutions are legally effective. The calculation of the deadline is of fundamental importance here. It is important to pay attention to whether the day of the shareholders' meeting and the day on which the invitation is sent are included in the calculation of the deadline or not. If the legal and statutory formal and time limit requirements for the invitation to a shareholders' meeting are not complied with, a shareholders' resolution can be challenged in court and declared invalid for this reason alone. The resolution and thus the invitation to a shareholders' meeting must be repeated. This is annoying and can lead to economic damage in urgent matters, for example when complying with strict notice periods.
The date and location of the shareholders' meeting must be chosen so that all shareholders can reasonably attend. A shareholders' meeting may therefore only take place on weekends in urgent exceptional cases. The location of the shareholders' meeting is usually the company's registered office. If the business premises are located at one of the shareholders, it may be unreasonable for another shareholder to go to the other shareholder's private rooms, especially in the event of a shareholder dispute. How the invitation to a shareholders' meeting should be issued always depends on the individual case.
agenda of the shareholders' meeting
Another important aspect is the preparation of the agenda. This must contain all relevant topics that are to be discussed and decided upon during the meeting. Regulations in the articles of association must also be observed with regard to the agenda. The GmbHG only regulates that resolutions on matters that have not been announced at least three days before the shareholders' meeting in compliance with the applicable formal and time limit requirements can only be passed if all shareholders are present.
Specific draft resolutions do not have to be included in the agenda. However, the respective resolution topic must be described in sufficient detail to enable each shareholder to prepare for the shareholders' meeting.
confidentiality and discretion
Confidential topics are often discussed at shareholders' meetings, such as strategic decisions or personnel matters. Every shareholder and managing director is obliged to maintain confidentiality towards outside third parties, which ensures that all content discussed is treated confidentially. This discretion is particularly important in order to ensure an open discussion of the topics under discussion and to protect sensitive information.
representation in the general meeting
The shareholders of a GmbH do not usually have to give an important reason for not attending a shareholders' meeting. Each shareholder has the right to decide for themselves whether to attend the meeting or not. However, attending the shareholders' meeting is important because decisions are made that can affect the future of the company. If a shareholder is properly invited but does not attend, resolutions can be passed without them.
The only exception to this is if the articles of association stipulate a certain minimum attendance, the so-called quorum. If the minimum attendance required by the articles of association, usually expressed as a minimum participation, is not achieved, the shareholders' meeting cannot take place.
Shareholders who cannot attend the shareholders' meeting in person have the option of being represented. In many cases, this is regulated by the GmbH's articles of association. A lawyer can act as an authorized representative and professionally represent the interests of the absent shareholder. This right of representation or accompaniment applies in particular to those resolutions that are legally or economically complex. This ensures that the rights of the shareholder are protected and that all relevant resolutions are passed in the interests of the person represented. If a third party acts as a representative for a shareholder, it must be ensured that they are properly authorized.
procedure of the shareholders' meeting
The shareholders' meeting usually begins with the confirmation of the presence of the shareholders and the determination of the quorum. The articles of association usually contain regulations on how many votes are required to pass a resolution. This is often a simple majority, but not always. However, a qualified majority may be required for certain decisions, such as changes to the articles of association. In this respect, too, the articles of association should always be consulted in order to avoid making any mistakes.
It is generally advisable to elect a chairperson. This chairperson will lead the shareholders' meeting, give the floor, take the minutes and, when resolutions are passed, determine the outcome of the resolution and announce it in the minutes. This is important for the running of appeal periods.
The agenda is then dealt with point by point. Each agenda item is discussed and then a vote is taken. It is important that all resolutions passed are recorded in detail in the minutes and that the chairperson of the meeting establishes the respective resolution result and that this determination is also recorded in the minutes for each resolution. Depending on the provisions of the articles of association, these minutes must be signed by the chairperson of the meeting. As a rule, the minutes are not a prerequisite for the effectiveness of a shareholders' resolution, but are primarily used for evidentiary purposes.
Voting bans must always be observed. A shareholder who is to be discharged of liability or released from a liability by the resolution has no voting rights and may not exercise such rights on behalf of others. The same applies to a resolution that concerns the execution of a legal transaction or the initiation or settlement of a legal dispute against a shareholder. The GmbHG generally prohibits voting in the event of a conflict of interest. Possible voting bans on individual resolution topics must be taken into account during preparation.
If unforeseen problems arise during the meeting, it may be necessary to interrupt or adjourn the meeting. This gives the shareholders the opportunity to obtain further information or additional advice. Here, too, it is advantageous to have a lawyer accompany them in order to ensure that the process is legally secure and that all formal requirements are met.
follow-up to the shareholders' meeting
After the meeting, follow-up takes place, which is just as important as the meeting itself. This includes drawing up the minutes, implementing the resolutions passed and informing all shareholders about the results of the meeting. Any challenges or legal reviews must also be taken into account in this phase. It should be noted that a resolution recorded in the minutes can only be challenged within one month of the resolution being passed or the shareholder becoming aware of it. The sending of the minutes may also be important for the start of the deadline. However, this is usually not the case.
In practice, this means that the action for annulment must be received by the court within one month. Only in the case of very serious violations of the law can a shareholders' resolution be declared invalid, and there is no time limit for this determination.
Interim legal protection measures are often necessary, especially if a Shareholders excluded from the GmbH In order to prevent a change to the list of shareholders, the application for an interim injunction must always be considered. Read the article “Shareholder disputes: strategies and conflict resolution in GmbH law.„
Conclusion: Legally secure conduct of your shareholders' meeting by a specialist lawyer for commercial and corporate law
Organizing and supporting a shareholders' meeting requires in-depth knowledge of corporate law and careful planning. Legally secure implementation is essential to protect the resolutions passed and avoid potential legal disputes. A specialist lawyer for commercial and corporate law can offer valuable support in all phases of the shareholders' meeting - from preparation to implementation and follow-up.
Having a specialist lawyer attend a shareholders' meeting offers numerous advantages. A specialist lawyer for commercial and corporate law can ensure that all legal requirements are met. This is particularly helpful when dealing with controversial or complex issues in order to ensure a factual and productive discussion. A lawyer can also clarify legal questions during the meeting and ensure that all resolutions are correctly recorded. This is important in order to avoid later challenges and to legally secure the resolutions.
