Virtual shareholder meetings for the GmbH

Virtual shareholders' meeting at the GmbH provided for by law since 1.08.2022

In many areas, the Covid pandemic has led to a shift from physical meetings to virtual ones in the form of video and telephone conferencing. However, as in many other areas of life, with regard to meetings and votes among shareholders, it is to be expected that non-physical meetings via video and telephone conferences will be adhered to even after the pandemic has ended. For the Limited Liability Company (GmbH), § 48 para. 1 s. 2 German Limited Liability Company Act (GmbHG) regulates for the first time since 1.08.2022 that meetings can also be held by telephone or video communication if all shareholders agree to this in text form.

Regulation in articles of association recommended

In order not to be dependent on the consent of all shareholders to hold virtual meetings and in particular with regard to a more detailed structuring of the virtual meeting procedure, it is recommended, even after the statutory regulation for the GmbH, to include provisions in this respect in the articles of association. As before, such regulations deviating from § 48 GmbHG remain possible unchanged. When drafting corresponding provisions in the articles of association, it is important that they sufficiently ensure the possibility for all shareholders to participate in the adoption of resolutions and the exercise of their shareholder rights. Further aspects requiring regulation are the question of the means by which the identity of the participants in virtual meetings is to be verified (in particular if there is no visual meeting) and how the (informal) passing of resolutions is to be documented. It must also be clarified whether (only) voting by e-mail is permitted during the ongoing virtual meeting or - in a sensible manner - acoustic communication in the context of a telephone or video conference is also possible. In any case, it is mandatory that at least an acoustic possibility for exchange exists.

Notarization of virtual (transformation) resolutions

Even after the amendment to the law, it remains controversial whether (transformation) resolutions requiring notarization may also be passed in a virtual shareholders' meeting. For amendments to the articles of association requiring notarization, the legislator has decided within the framework of the law supplementing the regulations for the implementation of the Digitalization Directive (DiREG) that notarization by means of video communication is permissible if the resolution is passed unanimously and no other formal requirements prevent this (§ 53 Paragraph 3 new version, in force from 1.8.2023).

A decision of the Federal Court of Justice (BGH) from 2021 (decision of 5.10.2021, ref.: II ZB 7/21) suggested that a virtual resolution is permissible in the case of merger resolutions to be notarized under the conditions listed in the decision of the BGH. The BGH ruled (in deviation from the two previous instances, which had rejected the registration of the merger of two cooperatives, in which the representatives' meeting of the transferring cooperative had approved the merger agreement at a meeting held virtually) that the merger resolution of a cooperative can be passed virtually if the notary is physically present at the place where the meeting is held.

The BGH first pointed out that, according to the prevailing opinion, a conversion resolution must be passed at a meeting of the shareholders, i.e. it cannot be passed by way of a written circulation procedure. However, the court then ruled that the German Transformation Act (UmwG) does not require that the shareholders be physically present at the meeting. Rather, the meeting may also be held in another form, i.e. also virtually, if this is permissible under the law or the articles of association for the respective legal entity and the opportunities for the shareholders to exchange opinions with the corporate bodies and with each other are comparable to a physical meeting and the exercise of the voting right is also guaranteed. Due to the development of modern communication technologies, in the opinion of the BGH a meeting of the shareholders according to general usage can also include meetings, for example, in telephone and video conferences, if a discussion of the subject matter of the resolution is guaranteed. The notarial certification of the merger resolution required under the UmwG also does not require a physical meeting; rather, in the case of a purely virtual meeting, the certification requirement can be met by the notary being present for the certification at the place where the chairman of the meeting is located, satisfying himself there of the proper conduct of the resolution procedure and then certifying the determination of the resolution result by the competent corporate body.

In the literature, even after the DiREG has come into force, it is argued that, in accordance with the decision of the BGH, it can be assumed that § 48 para. 1 s. 2 GmbHG also applies in principle to merger resolutions, although against the background of the DiREG decision on amendments to the articles of association ("virtual certification” only in the case of unanimity), it is sometimes argued that this can only apply if the merger resolution is unanimous. According to the government's explanatory memorandum to the DiREG (p.24), however, a (complete or partial) online certification of resolutions amending the articles of association as well as other resolutions as a factual record should not be possible, even taking into account the cited decision of the Federal Court of Justice.

Practical tip

In order to enable the most flexible possible formation of wills within the framework of the GmbH using digitalization, we recommend - insofar as this has not yet been done - that existing provisions in the articles of association be extended to include provisions on virtual shareholders' meetings. Until a legal clarification is made, however, we believe that virtual decision-making should be dispensed with in the notarization of conversion resolutions and, if necessary, powers of attorney should be used which can be issued in private writing except in the case of a conversion to a new founding.

_{Published: September 2022}