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Information Rights of a Limited Partner

A limited partner of a GmbH & Co. KG (limited partnership with a limited liability company as general partner) is not entitled to request information under section 51a GmbHG (Limited Liability Companies Act), unless the limited partner is also a shareholder of the general partner. The same applies if the limited partnership itself is the sole shareholder of the general partner. This company structure is called “Einheits-GmbH & Co. KG” which can be translated as “Unified –GmbH & Co. KG”.

Background

The OLG Celle (Higher Regional Court of Celle) ruled by court order dated 14 March 2017, file reference no.: 9 W 18/17, that the sole limited partner of an Einheits-GmbH & Co. KG was not entitled to request information under section 51a GmbHG since she was not a shareholder of the general partner. The court states that according to the clear wording of section 51a GmbHG this is necessary and that the limited partner is only entitled to his or her restricted monitoring rights of limited partners pursuant to Section 166 HGB (German Commercial Code). The court does expressly not agree with the opinion that a strict separation between the limited partner and the general partner is not reasonable with regards to the specialties of an Einheits-GmbH & Co. KG.

Comment

As far as can be told, the BGH (Federal Court of Justice) has not yet ruled on a case similar to the present one; it has, however, decided that the managing director of a general partner is responsible for the realization of rights of the KG as a sole shareholder of the general partner in the general meeting (BGH judgment dated 16 July 2007 - II ZR 109/06). The prevailing opinion in the literature and the Higher Regional Court of Celle used this as a basis to determine that a limited partner of an Einheits-GmbH & Co. KG is not entitled to request information under section 51a GmbHG. K. Schmidt has – for good reasons, as we think – a different opinion (Scholz, 11th edition, 2015, GmbHG section 51 a, margin note 52). The right of the shareholder of the general partner to request information under section 51a GmbHG can hardly be carried out by the managing directors of the general partner. Furthermore, the prevailing opinion leads to the following: If there is no corresponding provision in the Articles of Association, the Einheits-GmbH & Co. KG will always be incapable to pass a resolution in the general meeting of the general partner in which all of the managing directors are subject to a voting ban (e.g. in case of the discharge of a single managing director). For this reason, the Articles of Association of an Einheits-GmbH & Co. KG must always illustrate its special structure and expressly regulate the corresponding areas of conflict. For example, it is possible to grant the limited partner the corresponding rights to request information and other shareholder rights by means of provisions in the Articles of Association.

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