Obligation of a Shareholder to Make Enquiries about Resolutions Adopted in the Limited Liability Company

If a shareholder has not attended a shareholders' meeting of "its" limited liability company (GmbH), the shareholder must inform itself on its own initiative within two weeks of any resolutions that may have been adopted.

Background

On December 13, 2018, a shareholders' meeting of the defendant GmbH was held. The plaintiff (as insolvency administrator for the assets of a shareholder whose shares were to be forcibly assigned due to the insolvency) did not attend this shareholders' meeting despite a summons letter sent in due form and time. By e-mail dated January 10, 2019, i.e. four weeks after the resolution was passed, the company sent the plaintiff the minutes of the meeting. The plaintiff filed an action for rescission against the resolutions adopted one month after the transmission of these minutes. The Company's Articles of Association did not contain - which is not unusual - any provision on the period for rescission.

The defendant company objected to the contestation of the resolutions, arguing that this action should have been brought within one month of the resolution being adopted, which was not the case. The insolvency administrator, on the other hand, was of the opinion that only the delivery of the minutes of the meeting could set in motion the deadline for filing the action for rescission. For only then did the shareholder have knowledge of the contents of the resolution.

The Judgment of the OLG Dresden Dated 28.05.2020, File No. 8 U 2611/19

The Dresden Higher Regional Court (OLG) dismissed the action for rescission on the grounds that it was in any case limited in time. The resolutions passed had thus become unappealable. The deadline for challenging resolutions in the GmbH is one month, unless special circumstances exist. The OLG Dresden did not recognize any special circumstances in this case.

It was therefore only a question of when this period for contesting the resolutions began. In the opinion of the OLG Dresden, the period for contesting a resolution generally begins (only) when the shareholder becomes aware of the content of the resolution. However, if the shareholder is not promptly provided with the minutes of the meeting, the shareholder has an obligation to make inquiries to the company. The period for such enquiry is usually two weeks. The special circumstance of the expiry of the deadline "between years" (i.e., between Christmas and New Year) justifies extending the period for inquiry to three weeks in the case decided, so that the period for rescission has begun to run from January 3, 2019 (a Monday) even without the shareholder's knowledge of the content of the resolution. The insolvency administrator should therefore have filed an action for rescission by February 4, 2019 at the latest.

Note

The legal provisions on GmbH shareholders' meetings and the related resolution appeal procedure are strictly formalized. Not only for this reason is it of particular importance to comply with all formalities and deadlines. The deadline for contesting a resolution is of particular importance. That is because the contestable resolutions become incontestable and thus permanently effective upon expiration of the period for contesting resolutions. This applies not only if they are based on formal errors (e.g., summons by e-mail instead of by registered mail), but also if they are incorrect in content (e.g., if a false majority of votes is given).

If the Articles of Association do not provide for a provision on the period for contesting the resolution, then according to the consistent case law of the Federal Court of Justice in line with the statutory provision on a stock corporation (Section 246 (1) of the Stock Corporation Act, "AktG"), this is generally one month. This does not apply by way of exception if special circumstances make it necessary to provide for a longer period for rescission, which the shareholder bringing the action must prove.

Furthermore, if the GmbH Articles do not provide for the commencement of the rescission period, it is disputed in case law and literature which date is to be taken as the commencement of the period. According to one view, in the interest of legal certainty, the period begins with the passing of the resolution as such, so that knowledge of the plaintiff who did not attend the meeting is irrelevant. The OLG Dresden agrees with the contrary view, according to which knowledge of the content of the resolution by the contesting shareholder is required. However, the shareholder has an obligation to make enquiries, which must normally be fulfilled within two weeks. After these two weeks have expired, the one-month period for challenging the resolution begins.

In practice, it is recommended in any case that shareholders who were not present at the meeting should inquire promptly about the resolutions passed there. The decision of the OLG Dresden takes a middle course. By requiring the shareholder to be aware of the content of the resolution,  the shareholder is protected from any "surprise". On the other hand, the company should be able to obtain legal certainty in a timely manner and, in the event of a dispute, should not have to prove that it sent the minutes of the meeting to the shareholder (or that the shareholder was able to take note of its contents). If, for example, the company delivers the minutes to the shareholder by registered letter for evidentiary purposes and the shareholder does not collect the registered letter from the post office, it is deemed not to have been received in accordance with general rules. In such cases, the company is thus protected by the shareholder's obligation to make its own enquiries, so that clarity is promptly provided for all parties involved. The proposed regular two-week period is completely sufficient for this purpose.

However, in view of the strong counter-arguments, which allow the rescission period to begin as soon as the resolution is adopted, the action for rescission should nevertheless be filed one month after the resolution is adopted. The corresponding inquiries in the event that the minutes of the meeting are not received should therefore begin correspondingly early. Here, the shareholder concerned should "play it safe" and not expose itself to the risk that the court responsible for the action for rescission will assess the matter differently. At least for the OLG Dresden district of jurisdiction, the legal situation is now a bit clearer.