Gesellschafterbeschluss: How to do a shareholders' resolution for the GmbH

Contents

• What is a Gesellschafterbeschluss?
• When does a GmbH require a shareholders’ resolution?
• How to pass a resolution at a shareholders’ meeting of a GmbH
• Shareholders’ resolution template

What is a Gesellschafterbeschluss?

If a managing director of a GmbH wants to take ‘extraordinary measures’ (außergewöhnliche Maßnahmen) she has to get approval via a Gesellschafterbeschluss (shareholders’ resolution) as set out in § 49 (2) GmbHG. Extraordinary measures are activities that are particularly significant or risky or go beyond the scope of ordinary operations. (But, as there is no concrete legal definition, if it’s unclear whether a measure is ‘extraordinary’ or not, the managing director should still call a shareholders’ resolution.)

Shareholders’ resolutions are an official declaration by the shareholders to either approve or reject any extraordinary measures. They can only be passed at a Gesellschafterversammlung (shareholders’ meeting) either in-person or remotely (ie, in written and electronic form), and if a majority of shareholders vote in favour of them.

When does a GmbH require a shareholders’ resolution?

A shareholders’ resolution is expressly required at a GmbH in the following situations:

• Appointment, dismissal and discharge of the management board
• Examination and supervision of the management
• Conclusion, amendment or termination of managing director employment contracts
• Appointment and review of authorised signatories and authorised agents
• Calling in outstanding contributions from shareholders
• Decisions on the collection or reimbursement of additional contributions from shareholders
• Adoption of the annual accounts (Feststellung des Jahresabschlusses)
• Disclosure, preparation or approval of the annual accounts (Jahresabschluss)
• Approval of the consolidated annual accounts of a group of companies (Konzernabschlusses)
• Resolution on the appropriation of profits
• Amendments to the articles of association
• Capital increases and reductions
• Measures under the German Transformation Act (Umwandlungsgesetz)
• Conclusion, amendment and termination of contracts
• Regulation of business shares
• Dissolution and liquidation of the GmbH

A company can have further obligations regarding shareholder resolutions in its articles of association. This involves consulting the shareholders to draft a catalogue of scenarios that need a shareholders’ resolution.

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What is the relationship between shareholders’ resolutions & shareholders’ meetings?

Generally, the law requires that resolutions be passed at a general meeting of shareholders. This ‘ordinary’ shareholders’ meeting is a mandatory annual event for a GmbH. On top of this, shareholders often schedule regular meetings every three months. However, ‘extraordinary’ meetings (ie, outside the regular schedule) can happen whenever necessary.

Can a company pass a shareholders’ resolution outside a shareholders’ meeting?

Not every resolution needs to be approved at a shareholders’ meeting. If the resolution is relatively routine and non-controversial, directors do not have to call a meeting. Yet this is not a decision that can be taken lightly. The meetings are by design a mechanism to protect minority shareholders, as it is the main chance for their position to be heard.

When considering whether a resolution can be made outside of a shareholders’ meeting, the following things come into play:

• The articles of association must permit resolutions to be passed by written ballot.
• All shareholders, including those without voting rights, must agree to shareholders’ resolutions outside a shareholders’ meeting.
• A decision must be made in advance as to who may initiate a written vote.
• A specific time limit (at least one week) must be set for the casting of votes and objections thereto.
• The exact format of the vote (written with original signature, email, fax, etc.) has to be given.
• Rules around how to deal with a neutral shareholder (ie, a shareholder who does not comment on the subject matter of the resolution within the voting period) must be determined.

If the articles of association do not contain any special provisions on passing resolutions outside a shareholders’ meeting, section 48 (2) GmbHG applies. This permits the passing of resolutions in writing, where each shareholder votes in a written format or a text format. If the vote is via a written ballot, a scan or fax of the signed vote is not legally valid – a hard copy with the original signature must be sent to the recipient of the declaration (Erklärungsempfänger). On the other hand, if a text format is chosen, a simple email or fax is enough, as long as the vote is clear from it.

How to pass a resolution at a shareholders’ meeting of a GmbH

The following describes how to pass a resolution at a shareholders’ meeting.

Official procedure

The invitation to the shareholders’ meeting of a GmbH is sent at least one week before the date of the meeting via registered post. The following information makes up an invitation to a shareholders’ meeting:

• Name and company of the person convening the meeting (usually the managing director).
• Time and place of the meeting (usually the location of the company’s offices).
• Optional: Agenda items (listed completely and correctly).

The first order of business in any meeting is to determine if a quorum is present – if this is not the case, the resolutions are void. A quorum is not met, among other things, if not all shareholders have received an official invitation. Resolutions can only be passed if all shareholders are present and consent to waive the formal invitation process.

If the meeting is ‘duly convened’, it is quorate even if all shareholders are not present. However, the minimum number of participants set out in the rules in the articles of association must be present – otherwise, there is not a quorum.

Voting procedure and majority rule

The majority required for a shareholders’ resolution can be found in the articles of association. If there are no special provisions, a simple majority usually applies (cf. section 47 (1) GmbHG). But, under certain circumstances, a three-quarters majority applies:

• Amendments to the shareholders’ agreement (Änderungen des Gesellschaftervertrags)
• Capital increases or decreases (Kapitalerhöhungen bzw. -herabsetzungen)
• Changes to the legal form of the company (Rechtsformwechsel)
• Mergers and acquisitions (Fusion)
• Exclusion one or more shareholders (Ausschluss eines oder mehrerer Gesellschafter)
• Decisions to dissolve the company (Auflösung der GmbH)
• Continuation resolutions (Fortsetzungsbeschluss)

A shareholders’ resolution comes into force after the finalisation of the vote. Certain decisions such as a merger or change of legal form need the extra step of notarisation by a notary public to come into effect.

Taking minutes at the shareholders’ meeting

If minutes are taken at the meeting, all shareholders present need to sign to confirm the accuracy contents. This gives the resolution legal certainty and avoids lengthy discussions on the content afterwards. However, if a shareholder discovers that the minutes are incorrect, she must inform the managing director in writing immediately. The shareholder must object no later than one month after receiving the minutes – requesting that the necessary corrections or supplementation get to all shareholders as soon as possible.

What to do for one-person GmbHs

For one-person GmbHs, special rules apply to the shareholders’ meeting. This is because if only one person has a share in the GmbH, the shareholder does not have to invite himself or herself to the shareholders’ meeting. The mere presence of the sole shareholder constitutes a quorum for any company meeting.

By law, the operator of a one-person GmbH must record any decision taken to prove his decision. However, if he does not keep minutes, the decision is still valid.

Every set of minutes must be kept in duplicate – one copy belongs to the company, and the other is for any advisory purposes. Also, it’s necessary number the pages so the chronological order can be quickly proven.

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Shareholders’ resolution template

Downloading a sample free shareholders’ resolution template will save you hassle and time. In particular, a ready-made sample in PDF form has the advantage that the fields can be filled in directly, ensuring that the format remains consistent, unlike with the DOC or ODT templates. The template should include the following information:

• Subject: Shareholders’ resolution of [company name] GmbH
• Place, date
• List of shareholders present
• Commercial register, HRB number
• List of resolutions
• Fields for the signatures of the shareholders

In German, the terminology is:

• Betreff: Gesellschafterbeschluss der … GmbH
• Ort, Datum
• Liste der anwesenden Gesellschafter
• Handelsregister, HRB-Nummer
• Liste der Beschlüsse
• Freies Feld für die Unterschriften der Gesellschafter

A large number of free templates are available on the internet. If you go down this route, make sure that the template comes from a trustworthy source to ensure legal compliance. Good sources are the websites of accounting software providers, lawyers or public service agencies such as the IHK (chambers of commerce and industry).

Tip: Look for a design that is simple and has text that is legible and understandable. Also, if something that you can easily print in black and white to save on ink (these things add up).

The Master list of all Company Formation articles can be found here.