Our German partner, Dr. Bodo Vinnen from Melchers Law Firm shares with our community the current measures to contain Covid-19 and their effects in Germany:
The new regulations on shareholders’ meetings of limited liability companies (GmbH) and general meetings of public limited companies (Aktiengesellschaften) strengthen the ability of companies to act.
According to the current legal requirements, shareholders’ resolutions must be passed in shareholders’ meetings (see Section 48 para. 1 GmbHG). In exceptional cases, if all shareholders declare in text form that they agree to the written casting of votes (Section 48 para. 2 GmbHG), it is not necessary to hold a shareholders’ meeting.
In view of the currently applicable contact bans, the German legislator has taken remedial action. Notwithstanding Section 48 para. 2 GmbHG, it should be possible for shareholders’ resolutions to be passed in text form or by written submission of votes even without the consent of all shareholders. The regulation of Section 48 para. 2 GmbHG was and is of a dispositive nature, so that the articles of association could contain deviating regulations even before the change in the law.
The new regulation enables the company to exclude the physical presence at the shareholders’ meeting even in the event that there is no corresponding provision in the articles of association.
In addition to the GmbH, simplifications have also been created for holding general meetings (Hauptversammlung) at AG, KGaA and SE. General meetings are to be able to be held completely virtually and without the physical presence of stockholders (Aktionäre):
- In case that a general meeting is nevertheless held with physical presence, the management board can enable stockholders to participate or vote electronically even without the existence of an authorization in the articles of association.
- The period of notice for convening the general meeting was reduced from 30 to 21 days, as well as the general meeting can now also take place after the end of the eight-month period within the financial year.
- The management board may decide, with the approval of the supervisory board (Aufsichts-rat) but without a resolution of the general meeting, to pay a discount on the net retained profits to the stockholders without having been authorized to do so by the articles of association.
- If the general meeting has already been convened, the general meeting can be cancelled according to general principles and convened according to the new rules.
According to the current version of the law, the regulations are valid until the end of 2020, but if the effects of the COVID 19 pandemic make this necessary, the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz) has already been authorised to extend the validity of the above-mentioned amendments by ordinance until 31 December 2021 at the latest.
Find Dr. Vinnen’s full article in our LinkedIn page
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