Chairing a Disputed Shareholders' Meeting: Legally Secure Implementation and Resolution Determination

In corporate law practice, chairing a disputed shareholders' meeting represents one of the greatest challenges. When interests collide within a German GmbH, OHG, or KG, there is a risk of procedural errors that can lead to the contestability or nullity of resolutions. Legally secure meeting management is therefore essential to maintain the company's ability to act and minimize legal risks.

Review of Legal Bases and Legitimation

The first step consists of checking the competence for meeting chairmanship. This arises primarily from the articles of association or the company agreement.

• Statutory Chairmanship: If the agreement provides for a chairman, they are legitimized. The chairman is entitled to vote on the resolution regarding their own appointment or removal, even if they are subject to a voting prohibition on other points (BGH GmbHR 2010, 977).
• Ad-hoc Election: If there is no regulation, the chairmanship can be determined at the beginning by a simple majority resolution of the shareholders.
• Determination Competence: Particularly critical is the authority to formally determine resolution results. If the articles of association are silent on this, this competence should be explicitly confirmed by resolution at the beginning of the meeting to avoid later uncertainties regarding the effectiveness of the votes.

Formal Opening and Participant Review

After the opening, the personnel requirements for a valid meeting must be created.

1. Representation and Powers of Attorney

In the case of representation of a shareholder, the original power of attorney document must be checked and mandatory attached to the protocol.

2. Participation of Non-Shareholders

If consultants or other third parties appear, it must be clarified whether their participation is permissible according to the articles. If the contract is silent, the participation entitlement must be clarified by majority resolution, unless there is unanimous consent or corresponding case law for certain groups of cases. Without a legitimate resolution, additional participants must leave the meeting.

3. Appointment of the Minute-Taker

Unless there is a statutory regulation, the appointment of a minute-taker is made by majority resolution. Precise minutes are the most important basis of evidence in disputed arguments.

Convocation and Quorum (MoPeG 2024)

The meeting chairman must determine whether the convocation regulations have been observed. In the case of convocation defects, a full assembly (Vollversammlung) can only be held if all shareholders are present and expressly or tacitly waive formal and deadline regulations.

Regarding the quorum, the new regulation by the German MoPeG must be observed:

• Commercial Partnerships (OHG/KG): According to Section 109 para. 4 of the German HGB, the meeting is only quorate if the shareholders present represent the majority of the votes necessary for the specific resolution – regardless of any voting prohibition.
• GmbH: Here, in case of doubt (without deviating articles), the presence of at least one voting shareholder is sufficient, provided the convocation was error-free.

Conduct of the Vote and Voting Prohibitions

Every shareholder must have the opportunity to comment. In the case of personally affected shareholders (e.g., dismissal for good cause), there is a mandatory right to be heard.

The meeting chairman must check the validity of the votes during the voting process. In particular, in the event of conflicts of interest, statutory voting prohibitions apply. A classic practical example is the dismissal of a shareholder-managing director: the person concerned has no voting right if an important reason exists (Section 47 para. 4 of the German GmbHG). If they dispute the important reason and nevertheless vote with their majority against the dismissal, it is incumbent on the meeting chairman to provisionally evaluate this voting right within the framework of the resolution determination.

Resolution Determination and its Legal Consequences

The formal resolution determination by the meeting chairman is the decisive instrument for managing the conflict.

• Provisional Binding Nature: A determined resolution is "provisionally binding" (BGHZ 104, 66). This means that the resolution is legally considered to exist until it is set aside by a court.
• Shifting the Burden of Litigation: Through the determination, the defeated shareholder is forced to become active. They must file an action for annulment within the challenge period (GmbH: usually one month according to Section 246 of the German AktG analogously; OHG/KG: three months according to Section 112 of the German HGB). Without determination, the validity would have to be resolved through a lengthy action for a declaratory judgment (Section 256 of the German ZPO).
• Liability Risk: An intentionally or negligently incorrect resolution determination can trigger a claim for damages by the meeting chairman against the company or the shareholders under Section 280 para. 1 of the German Civil Code (BGB).

Conclusion

Chairing a disputed shareholders' meeting requires, in addition to profound knowledge of corporate law, a high degree of formal precision. The meeting chairman acts as a provisional "instance" whose decisions on the effectiveness of resolutions significantly define the procedural starting position for all participants. Careful preparation of the legal bases and gapless documentation of the voting processes are essential to make the resolutions court-proof.