A recent decision by the Kammergericht Berlin (Case Number: 22 W 4/25) has made an important ruling in the area of corporate law. The decision concerned a case in which the proper invitation to the shareholders’ meeting of a limited liability company (UG (haftungsbeschränkt)) was examined, a matter that is crucial for the registration in the commercial register.
1. The Importance of Proper Invitation in a UG (haftungsbeschränkt) or GmbH (Limited Liability Company)
In the present case, after the death of the sole managing director, the company held a shareholders’ meeting at the invitation of the majority shareholder, in which a change of management was decided. The majority shareholder stated in the meeting that the shareholders’ meeting had been properly and timely convened by him through a registered letter on December 4, 2024, with the agenda being communicated to all shareholders, and that he was entitled to convene the meeting because the sole managing director of the company had passed away on October 15, 2024. However, the majority shareholder did not provide proof of the receipt of the invitation by the minority shareholder to the court. The lack of proof that all shareholders had been properly invited to the meeting later became the key point of the court’s ruling. The district court had initially expressed doubts about the validity of the meetings’ resolution because it was not proven that the absent (minority) shareholder had been properly invited.
Why is this important?
In a GmbH or UG (haftungsbeschränkt) (limited liability company), all shareholders must be properly invited to the meeting. If this step is omitted, the resolution—such as the appointment of managing directors—can be considered invalid. A proper invitation proof is therefore indispensable when changes in management are to be registered in the commercial register.
2. What does “Properly Invited” mean?
According to the ruling of the Kammergericht, it is not enough for the chairman of the shareholders’ meeting to simply state that all shareholders have been properly invited. Instead, this must be substantiated by concrete evidence—such as the sending of invitations via registered mail with a return receipt or another formal documentation.
In this case, it was merely claimed that the invitation was “properly and timely” sent, but the proof in the form of the relevant documents, such as the return receipts of the registered mail, was not provided. The court therefore ruled that this proof is necessary in the commercial register process to confirm that the invitation was properly issued.
3. Consequences of Missing Proof of a Proper Invitation
If a shareholder was not properly invited to the meeting, the resolution passed in that meeting, in accordance with Section 241 No. 1 of the German Stock Corporation Act (AktG), which also applies to GmbH law, could be deemed invalid. This leads to an “obstacle to registration” in the commercial register, as the registration court can only register the resolution if it is certain that all legal requirements have been met.
The Kammergericht’s decision confirms that there is no exception to the obligation to provide proof of a proper invitation. A mere assertion is not enough. This also has practical implications: If you, as a managing director or shareholder, wish to register a change in the commercial register—whether it is the appointment of a managing director or another significant action—you must ensure that all shareholders were properly and verifiably invited.
4. Practical Tips for Shareholders and Managing Directors of Corporations
- Keep careful documentation. The invitation to the shareholders’ meeting should always be in writing, ideally sent by registered mail or another traceable method. Ensure that you keep the return receipts or other proof of delivery.
- Check the proper conduct of the meeting before registering in the commercial register. The registration court will carefully verify whether all formal requirements have been met before making an entry. This particularly includes the proper invitation of all shareholders.
- Seek legal advice in case of doubt. If there are uncertainties regarding whether the invitation was properly carried out or whether all formal requirements were met, it is advisable to consult a lawyer early on. Legal advice in corporate law can help avoid mistakes.
5. Conclusion
This ruling by the Kammergericht (KG Decision of February 18, 2025 – 22 W 4/25, BeckRS 2025, 2781) once again highlights the importance of observing all legal formalities when holding shareholders’ meetings and making changes to the appointment of managing directors. A formal error, such as incomplete invitation procedures, can have far-reaching consequences and lead to the invalidity of resolutions. Therefore, it is crucial for shareholders and managing directors not only to conduct the meeting properly but also to provide verifiable proof of the invitation.
Note: This text does not claim to be exhaustive and does not constitute legal advice. Legal advice is provided exclusively on a case-by-case basis after reviewing the specific facts from a legal perspective.
If you have legal inquiries about this or other legal issues, feel free to contact Mr. Attorney Eugen Balin, LL.M. at info@balin-legal.de.
