Effective Receipt of a Summons to the Limited Liability Company Shareholders' Meeting

The Brandenburg Higher Regional Court (Oberlandesgericht, "OLG") reminds that limited liability companies ("GmbHs") should send the letter of summons to the addresses provided by the shareholders when convening a shareholders' meeting. If the cargo letter is dispatched to another address, the GmbH must prove that the cargo letter was actually received by the shareholder.

Background

The accused GmbH wanted to convene a meeting of shareholders, in which its liquidation should be decided. The plaintiff was a minority shareholder. The management sent the summons to the shareholders' meeting by registered mail and gave an address at which it assumed, based on concrete evidence, that the plaintiff was staying there regularly and permanently. This was the address of the plaintiff's partner. The charge letter was delivered to the partner of the plaintiff. He however sent this postal item unopened back to the defendant and informed the defendant that the plaintiff did not live at the indicated address. The shareholders' meeting, at which the liquidation of the company was decided, took place without the plaintiff.

The plaintiff brought an action against the resolution passed before the competent Regional Court in Potsdam. She was of the opinion that she had not been effectively summoned to the meeting. She claimed that she did not live at the address given and did not stay there permanently. The defendant, on the other hand, claimed that the life partner was to be regarded as the partner's messenger of receipt, so that the summons had already been received by the partner when he accepted it.

The Potsdam Regional Court dismissed the action for annulment of the liquidation order. The plaintiff appealed against this decision to the OLG Brandenburg Higher Regional Court.

The judgment of the OLG Brandenburg of 08.07.2020, file no. 7 U 64/19

The appeal was successful. The OLG Brandenburg declared the liquidation decision void because the plaintiff was not properly summoned to the meeting. The summons to the partners' meeting was not sent to the address which the plaintiff had given to the defendant, but to the address of the life partner. This means that the company cannot - as would otherwise have been possible - rely on the mere statement that it sent the summons to the partners' meeting to the correct address in good time. Rather, in this constellation it bears the full burden of proof that the summons was actually delivered. However, the company could not provide this proof.

The company could not prove that the mailbox carried the name of the plaintiff. Notwithstanding this, it could not prove that the summons was dropped into the mailbox. Neither was the partner a receiving messenger of the shareholder. According to general principles, it was necessary for the plaintiff to permanently reside in the partner's home, which the company could not prove either.

Note

If the company wishes to convene a shareholders' meeting, the invitation letter must be sent to all shareholders. Otherwise the resolutions passed at the meeting are void from the outset.

For the proper summoning of a shareholder it is sufficient that the letter of summons is sent to his or her correct address and that the form and deadline of the summons provided in the articles of association are observed. The company does not have to prove the receipt of the summons by the shareholder, but can only refer to the dispatch of the summons. These principles however only apply as long as the company sends the summons to the address communicated by the respective shareholder. If, however, the company uses a different address, from which it believes that the shareholder can be reached there, it cannot rely on the dispatch of the letter, but must prove the actual receipt of the summons by the shareholder. This proof is much more difficult to provide.

In practice, it is therefore recommended that the shareholders deposit addresses with the company that are capable of being summoned and also commit themselves towards the company to provide immediate information of any change of address that can be summoned. If such an obligation does not exist and the company has serious doubts as to whether the address communicated by the shareholder is still his or her current address, the company may request the shareholder to confirm or communicate the current address. If the shareholder does not comply with this request, he or she is in breach of his or her own obligations, so that a summons sent to the address known up to now causes him or her to duly convene the shareholders' meeting.