Simplification of shareholder resolutions in times of pandemic also in 2021

The Act to Mitigate the Consequences of the Covid 19 Pandemic in Civil, Insolvency and Criminal Procedure Law of 27 March 2020 ("COVMG") created the conditions for a digital shareholders' meeting for public limited companies.

For the GmbH, the legislator has not provided for a "digital shareholders' meeting" but has granted other facilitations.

If the memorandum and articles of association do not contain a provision on passing resolutions outside of shareholders' meetings, the statutory provision § 48 GmbHG applies pursuant to § 45 (3) GmbHG. Pursuant to section 48 (1) GmbHG, resolutions of the company are generally passed in shareholders' meetings.

A resolution without a shareholders' meeting is only possible if all shareholders agree in text form to the determination to be made or to the written submission of votes (so-called unanimous voting for the proposed resolution) or if all shareholders agree to the written submission of votes (unanimity with regard to voting mode but not with regard to a substantive decision).

Facilitation during the pandemic?

Art. 1 § 2 COVMG provides for a temporary exception to § 48 para. 2 GmbHG. Accordingly, resolutions of the shareholders may be passed in text form or by written submission of votes without the consent of all shareholders, in derogation of § 48 para. 2 GmbHG.

The derogation, which came into force on 28 March 2020, originally applied to all shareholders' meetings held in 2020. These regulations are now extended until 31.12.2021.

The managing director of a GmbH can therefore also order a resolution in text form in 2021. This applies regardless of whether all shareholders agree to this form of voting, participate in it or agree on the substance. A corresponding basis in the articles of association is not required.

In contrast, the COVMG does not provide for other forms of voting without a presence meeting, such as telephone or video conferences, for the GmbHG. These are only permissible if expressly provided for in the articles of association.
For further questions, specific implementation advice or review of your articles of association, please contact Dr David von Saucken.