DE: Right of contestation of a GmbH shareholder

Oct 20, 2021 Benn-Ibler Rechtsanwälte

In its ruling, the German Federal Supreme Court (Bundesgerichtshof, BGH) confirmed the comprehensive legitimising effect of the list of shareholders of a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) and ruled that, in principle, shareholders lack the power to contest shareholder resolutions insofar as, at the time the resolution was adopted, the ownership of their share was not entered in the list of shareholders. This is only different if the specific status as a member of the plaintiff shareholder is at issue, e.g. with regard to the redemption of his shares.

In the present case, a shareholder of a GmbH had challenged several shareholder resolutions, even though he was no longer entered in the list of shareholders as the owner of a share in the company, because the other shareholders had previously withdrawn his shares by shareholder resolution.

The BGH emphasised that the list of shareholders, in addition to the positive legitimising effect of Section 16 para 1 sentence 1 of the Act on Limited Liability Companies (GmbH-Gesetz, GmbHG), also has a negative effect, as a result from the wording. Accordingly, from the time the list of shareholders no longer lists the shareholder, it is no longer possible to exercise the rights of membership. The shareholder's right to contest is an administrative right directly resulting from membership and thus the negative legitimation effect also includes the right to contest. If the plaintiff lacks the right to contest, he or she also lacks the substantive right to assert claims that are directed towards a positive resolution.

However, the negative legitimation effect does not apply without restriction. Contrary to the effect, the shareholder's right to contest his exclusion or the redemption of his share is recognised on the basis of Article 14 para 1 of the Basic Law (Grundgesetz, GG) in order to provide him with his constitutionally required legal protection. In order not to place the shareholder against the redemption without a legal grounds, his membership in the (defendant) company, is to be regarded as continuing for the purposes of this lawsuit.

However, the nullity of the shareholders' resolution on the redemption of the share, as determined by the Court of Appeal, does not in principle preclude the negative legitimising effect of the deletion of the share from the list of shareholders.

BGH II ZR 391/18 (26.01.2021)