The special audit at a GmbH.

 What you need to know about the control instrument of minority shareholders at a GmbH.

The special audit at a GmbH.

GmbH law primarily recognizes decisions made by the majority – that is the law. However, the special audit can represent an efficient means of establishing the basis for a (successful) shareholder dispute due to unlawful management activities.

Minority protection at a GmbH

Majority decisions are the standard when it comes to making management resolutions at a GmbH, as is intended by Section 47 (1) of the Act on Limited Liability Companies (GmbHG).

Nevertheless, situations occur which rightly justify the protection of minority shareholders at a GmbH. Accordingly, GmbH law stipulates at least a few rights in this regard. For more information, see our article on “Protecting the rights of minority shareholders in the GmbH”.

The special audit in GmbH law

The special audit is a further option alongside the general loyalty obligations and specific blocking minorities.

The special audit is not expressly regulated by GmbH law itself. Rather, the corresponding right to call for a special audit is derived from Section 46 No. 6 of the Act on Limited Liability Companies (GmbHG). Generally speaking, this right is based on the fact that shareholders also have the task of initiating “measures for auditing and monitoring the management”.

Subjects of the special audit

Special audits at a GmbH can be initiated to review whether the management has acted properly or to examine the correctness of individual measures. The special audit can then serve as a basis for preparing to enforce claims arising from a shareholder dispute.

However, it is important to be aware that the resolution must not be intended to “initiate a special audit” but rather must appoint a special auditor tasked with examining a specific issues (= the subject of the audit is a specific measure by a majority managing director, for example).

Who can call for a special audit?

Theoretically, any GmbH shareholder can call for a special audit. Nevertheless, a simple majority of the eligible votes is required.

Yet how can the special audit become the weapon of a minority shareholder? Reviewing the measures of a majority shareholder managing director makes this aspect easier to understand: Anyone affected by a special audit, such as a majority shareholder in their role as the managing director, may not participate in the vote on the special audit (Section 47 (4) of the Act on Limited Liability Companies (GmbHG)).

Accordingly, the simple majority of the remaining (= “eligible”) votes then decides whether the special audit takes place.

The result of the special audit

If the special audit takes place, the special auditor will question the management, inspect documents and then submit their report at the shareholders’ meeting.

Depending on the results, the special audit report can then form the basis for legal action such as claims for damages by the company against the managing director or even for dismissing the managing director.

Time limit for the abuse of rights?

In principle, there is no deadline within which the special audit must be initiated.

As such, there are no time limits in this sense. However, the special audit may represent an abuse of law if the results no longer provide any legal benefits because claims for damages have already expired, for example.

In other words, as long as the results of the special audit can form the basis for enforceable claims, a special audit is also conceivable.

How we can help you?

Are you a minority shareholder in a GmbH and would like to launch a special audit? We can clarify your options! Do not hesitate to contact us!

Summary of the key facts:

  • The special audit is not expressly regulated in GmbH law, but is recognized.
  • A majority resolution of the eligible votes is required to initiate a special audit.
  • The special audit is also an effective means of subsequently reviewing the management and measures of a majority shareholder.