09.05.2019

Resolution on the obligation to transfer assets as a whole - Update

Background

In our newsletter dated March 12, 2019, we pointed out, following a decision by the Higher Regional Court of Brandenburg, that in accordance with established case law § 179a of the German Stock Corporation Act (AktG) is analogously applicable to the power of representation of a limited liability company (GmbH) and a partnership, and that a corresponding notarial approval resolution of the shareholders' meeting should not be waived. This led to additional costs in the respective proceedings.

The initial situation of the Higher Regional Court (OLG) Brandenburg decision was that a shareholder as liquidator had sold the property of the company, a GmbH, to a third party after the liquidation of the company by the two shareholders had already been decided. There was a disputed whether the sale required the approval of all shareholders in accordance with § 179a AktG analogously. Following the established jurisprudence the OLG Brandenburg (judgement of 29.03.2018, Az. 5 U 18/16) decided that § 179a AktG applies in principle to a GmbH analogously, but emphasized that an additional resolution of the shareholders' meeting is not necessary in this exceptional case, due to the shareholders' resolution on the liquidation and the sale of significant parts of the company.

Change of Direction - The Decision of the German Federal Court of Justice (BGH)

The Federal Court of Justice (BGH) has now taken up the controversial question of the applicability of § 179a AktG analogously within the framework of the revision and, contrary to established case law, has made a change of direction by clarifying that § 179a AktG is not to be applied analogously to the GmbH. This is the first time that the highest court has issued a statement on this subject matter.

The BGH has dealt in detail with the question of whether there is a regulatory gap and whether the requirements for an analogy exist. In the result the court states that the partners of a GmbH have a substantially larger influence on the management according to the legal basic conditions and these can determine in clearly more effective measure, than the shareholders of a stock corporation. This stronger position of power corresponds to a lower degree of protection worthiness of the shareholders of a GmbH, which is why a restriction of bona fide legal transactions by the requirement of a resolution according to § 179a AktG is not justified by analogy.

The BGH adds that the protective purpose of § 179a AktG in GmbH law is also safeguarded without its analogous application, since the managing director is obliged in particularly significant transactions to obtain the consent of the shareholders' meeting from himself, § 49 (2) GmbHG (German Limited Liability Act), even without the corresponding provision in the articles of association. This not only secures the right of control of the shareholders' meeting, but also protects the minority shareholders.
Although the protection provided by § 179a AktG always affects the external relationship and is therefore more far-reaching, the BGH considers that the interests of the shareholders are sufficiently safeguarded by the institutions of abuse of the power of representation and possible claims for damages against the managing director.

Effects on Practice

In practice, this means that the approval decision, which was previously subject to notarization, and the additional fees associated with it will no longer apply in future.

If you have any questions about the effects on your own processes in the company, we will be happy to provide you with comprehensive advice.

BGH, ruling of 8 January 2019 II ZR 364/18