Competencies to represent an Einheitsgesellschaft
Decision of the OLG Celle dated 06.07.2016 (9 W 93/16)
In an „Einheitsgesellschaft“ (GmbH & Co. KG) basically only the limited liability partnership is entitled to amend the articles of association of the general Partner.
A German limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) in its function as the general partner of a German limited liability partnership (GmbH & Co. KG) had filed the application for the amendment of its articles of association to the commercial register. The sole shareholder of the general partner was the GmbH & KG itself (in Germany such a limited liability partnership is a so-called Einheitsgesellschaft). According to the minutes of the shareholders' meeting of the general partner the general partner had held the shareholders' meeting on behalf of the GmbH & Co. KG and decided to amend its articles of association. The commercial register rejected the entry into the register on the grounds that in case of an Einheitsgesellschaft the shareholders' meeting of the limited liability partnership is the competent body for amending the articles of association and not the shareholders' meeting of the general partner.
The Higher Regional Court (OLG) Celle decided that only the GmbH & Co. KG as the sole shareholder of the general partner is entitled to exercise the rights in the shareholders' meeting of the general partner. The competent body for this task within the GmbH & Co. KG is the general partner, which in turn is represented by its managing directors (the German Federal Court has clarified this already by its ruling dated July 16, 2007, II ZR 109/06). The limited partners of the GmbH & Co. KG in their entirety are not entitled to represent the GmbH & Co. KG. This derives from the principle laid down in sec. 170 German Commercial Code (Handelsgesetzbuch – HGB), according to which the limited partners are excluded from the management of the GmbH & Co. KG. However, the representation of the GmbH & Co. KG by its general partner is only effective if the articles of association of the GmbH & Co. KG do not contain deviating provisions regarding the competencies to exercise the shareholder rights of the general partner. In the present case, the articles of association gave the limited partners the power to exercise the rights arising from the shares in the general partner. They had, however, given their power of representation further to the advisory board formed at the GmbH & Co. KG, which should have represent the GmbH & Co. KG towards third persons.
The decision of the OLG Celle recalls the problem that the managing director of the general partner of an Einheitsgesellschaft fulfills two different functions: On the one hand he represents the GmbH & Co. KG as the sole shareholder of the general partner, but on the other hand he represents the general partner. Therefore, he may appoint in the name of the GmbH & Co. KG – as the sole shareholder of the general partner – in the shareholders' meeting further managing directors of the general partner or discharge himself as managing director. Such conflicts of interests can be solved by stipulating the transfer of the competencies to exercise the rights arising from the shares in the general partner to the limited partners in the articles of association of the GmbH & Co. KG. The limited partners may also empower an advisory body established in the GmbH & Co KG to represent the GmbH & Co. KG in external relations.