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18.05.2020 | KPMG Law Insights

GmbH resolutions in times of Corona

GmbH resolutions in times of Corona

The normal case is the meeting: this is where the shareholders of a GmbH are supposed to pass their resolutions. But what is normal in times of Corona? Therefore, the legislator has introduced new rules and, in particular, simplified the written procedure. Shareholders should inform themselves about the details in order to ensure legally compliant resolutions.

Shareholder resolutions ensure the GmbH’s ability to act. From the approval of the annual financial statements to distributions to capital increases or amendments to the articles of association – the law requires a resolution of the shareholders for many significant actions in the GmbH. In addition, in many cases there are other issues that do not require a shareholders’ resolution under the law, but do require a shareholders’ resolution under the articles of association of the respective GmbH. According to the law, the shareholders generally make their decisions at the shareholders’ meeting.

This gathering is made more difficult in the current pandemic situation: travel options are limited and gatherings of people, even more so in closed rooms, are problematic. The legislator has reacted and relaxed the requirements for the so-called written procedure. This is because, unlike stock corporation law, GmbH law does not recognize any general admissibility of online meetings. The new rules are initially scheduled for 2020 and cover all decisions made in the current year.

Facilitation of the written procedure

Even in the past, GmbH shareholders were able to cast their votes for a resolution by means of a written procedure, often also referred to as a circulation procedure. An e-mail is sufficient, a signature is not required. However, unanimity was previously required here. Under the new regulation, this hurdle no longer applies. In practice, this change means that the individual shareholder can no longer force a presence meeting. Previously, it was sufficient if he refused to cooperate in the written procedure.

Instead, under the new rules, he will be treated as if he had not appeared at a shareholders’ meeting. This is because the law does not stipulate a minimum turnout for the written procedure – only the votes cast are counted. An effective resolution is therefore already possible if a single shareholder casts his vote.

Securing the shareholders’ right to participate

However, each shareholder must still be given an appropriate opportunity to participate in the decision-making process. The law does not make any statements on the formalities. In any case, it should be sufficient if the formalities and deadlines are observed in the invitation in the same way as for presence meetings.

Because under the new rules the written procedure no longer requires unanimity, the question arises as to the protection of the individual shareholder’s right to participate. The law does not contain any provisions in this regard either, as the requirement of unanimity has so far adequately protected the individual shareholder. In order to avoid a resulting gap in protection, it will be necessary to fall back on the general principles and on the provisions governing the passing of resolutions in presence meetings.

The text form, a weakened version of the written form, applies to voting. In fact, it is sufficient if the text is available unambiguously and permanently in stored form. This means that fax and e-mail come into consideration just as much as, for example, voting on social media platforms.

Accompanying telephone and video conferences

However, written voting does not mean that the entire procedure, i.e. the entire meeting, must be presented in writing. For example, a video or telephone conference can be held in parallel to the written decision-making process, in which the participants can directly discuss the issues at hand. From a legal point of view, this is still a resolution adopted by written procedure. Conversely, this naturally means that a resolution must also be adopted in text form in the event of a consensual telephone call. It is not enough for the participants to agree on the phone.

Special case: Written procedure according to the Articles of Association

A special case may arise as a result of the new regulation if a GmbH’s articles of association already contain provisions for the written procedure. Not infrequently, these regulations will be stricter than the new statutory regulation, for example by requiring the active consent of all shareholders. In individual cases, it will have to be decided whether the provision in the Articles of Association exceptionally bars the application of the law.

Special case: Notarization

A number of shareholder resolutions require notarization. This applies, for example, to amendments to the Articles of Association and capital increases. The legal facilitations must also apply here. As a result, this means that in these cases, too, not all shareholders have to participate in the written procedure. However, only those votes that are notarized are counted. In uncontroversial cases where the shareholders are in agreement, pragmatic representation solutions can be found here. However, if the shareholders are unable to reach an agreement, in extreme cases each individual shareholder who wishes to vote must appear at the notary’s office himself.

 

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