The Limited Liability Company under German Law (the GmbH). Dr Alexander Schröder-Frerkes
apply in the event that all of the shareholders appear at the shareholders’ meeting and none of the shareholders contradict the passing of resolutions during the meeting.
Secondly, a shareholders’ resolution is deemed void if a notarisation of the resolution is required by law and the notarisation has not been undertaken.57 As opposed to the case where a stock corporation is concerned, where all shareholders’ resolutions must be notarised, the resolutions of a GmbH only need to be notarised if this is explicitly prescribed by mandatory law. Included among the important cases in which notarisation to this effect is required are amendments of the articles of association,58 resolutions under the Law Regulating the Transformation of Companies (Umwandlungsgesetz) and resolutions regarding the issue of entering into domination, or profit and loss transfer agreements.
Thirdly, resolutions are considered void if they are not compatible with the character of a GmbH or if the content of a resolution violates regulations which are either exclusively or predominantly designed to protect the interests of the creditors of the company or if these have been adopted in the public interest.59 Given the broad wording, it is difficult to establish general rules as to when a resolution will be void under this provision. It must be determined on a case-by-case basis whether a resolution violates regulations which are in force to protect the interests of creditors or of the general public. One example of a violation of regulations adopted in the interest of the creditors of the company would be shareholders’ resolutions which violate mandatory statutory rules on the raising and maintenance of the share capital.
A shareholders’ resolution may also be void if, by way of its content, it violates standards of morality (gute Sitten).60 Again, given the extensive scope of this provision, it is necessary to examine on a case-by-case basis whether or not a resolution violates this standard. However, a violation of this nature will not occur often, since the requirements associated with this standard are rather high. Additionally, a shareholders’ resolution is considered void if it has been declared so by a court as a result of an action of opposition (Anfechtungsklage).61 A shareholders’ resolution is further void if the respective resolution has been deleted from the commercial register based on a final court decision.62
In addition to these cases, the Stock Corporation Act sets out further grounds leading to the invalidity of a shareholders’ resolution which also apply accordingly in the case of a GmbH. These further grounds for the invalidity of a resolution include, for example, the election of members of the supervisory board subject to certain serious violations of statutory law,63 resolutions on the use of the net profits for the financial year if the resolution on the approval of the annual financial statement is null and void,64 and resolutions on the approval of the annual financial statement if this resolution is subject to major defects.65
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