Extending a correct invitation to the shareholders’ meeting.

 Contestability and nullity: the most common mistakes in shareholder resolutions.

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Einladung Gesellschafterversammlung, Insight von Prof. Dr. Peter Fissenewert, Rechtsanwalt der Kanzlei Buse Heberer Fromm

The resolutions of the shareholders' meeting of a GmbH decisively determine its further development, its fate and its progress. Here, strict formalities must be observed as infringements can lead to contestability or even nullity of the decision.

Voting outside the shareholders’ meeting

Most of the resolutions are taken outside the ordinary shareholders’ meeting and that is also good and right as voting outside the meeting, e.g. by telephone or by subsequent verbal decision, is possible, provided that this is envisaged as mandatory in the articles of association. If there is no such regulation, the vote cannot be cast outside the meeting.

Voting in text form (letter, fax, e-mail) is also popular, but must also be permitted as per the articles of association.

If there is a lack of appropriate regulation, the vote cannot be cast outside the meeting – with the consequence of invalidity and contestability, even if the vote by the affected shareholder does not matter.

Incorrect convening

If voting is to take place in a shareholders’ meeting, a variety of pitfalls must be considered.

Non-observance of invitation deadlines 

The legal minimum period of notice for an invitation to the shareholders’ meeting is one week. Frequently, however, the articles of association provide for longer terms. These must be strictly adhered to as each shareholder must have the opportunity to prepare sufficiently for the shareholders’ meeting and the decisions to be taken in it.

Failure to make timely invitations will result in the nullity and contestability of the decisions.

Invitation by the wrong person

Not everyone is entitled to issue an invitation. As a rule, the managing director issues invitations to a shareholders’ meeting. If he or she refuses, the invitation can also be issued by a shareholder with at least 10% of the share capital.

An invitation by an unauthorised person is not a valid invitation – resulting in nullity and contestability of the resolutions.

Not all shareholders were invited

Anyone who is entitled to participate must also be invited – regardless of whether the person concerned has a voting right (silent partner) or is important in the vote (minority shareholder).

If not all shareholders have been invited, the corresponding decisions taken are void and contestable.

An inadequate invitation to a shareholders’ meeting of a GmbH exists despite a formally correct invitation to the last known address of the shareholder in any case if 

  • on the basis of specific circumstances, it can be assumed that the formally correct invitation will not reach the shareholder concerned at this address;
  • it is possible to reach the shareholder by e-mail and to inform him/her about the upcoming shareholders’ meeting and
  • the possibility of communication by e-mail in other contexts has already been used several times – especially for invitations to shareholders’ meetings in the past.

This was decided by the Dusseldorf Upper Regional Court (19.04.2018 – I-6 W 2/18) that stated that such an invitation was an abuse of the law and therefore equivalent to a non-invitation. This lack of invitation was so serious that it led to the nullity of the resolutions passed in the shareholders’ meeting.

Wrong indication of location and date

These errors also lead to nullity and contestability.

Advisory Board and Supervisory Board

Insofar as a person who is not a shareholder but is entitled to participate by virtue of a special right (e.g. a member of an advisory board or a supervisory board) has not been invited, the resolution with the consequence of contestability has been made incorrectly.

Formal defects

Certain shareholders’ resolutions, such as the amendment of the articles of association, require certification by a notary to be valid. If there is no certification, the decision is void and contestable.

Such a consequence exists even if the statutes provide for recording. Decisions are then also only valid if they have been properly recorded.

Practical tip:

Resolutions should always be carefully prepared and executed. A glance at the statutes or articles of association often helps here. Some important things are to be considered when establishing a company and which, in practice, then considerably simplify the life of the shareholders amongst themselves and with one another. We will be pleased to assist you here.