In a remarkable resolution issued on 5 October 2021, on the one hand the BGH´s 2nd Senate has answered in the affirmative the controversial question if the requirement of a notarial recording of shareholders´ resolutions on structural measures pursuant to the German Transformation Act (UmwG) can also be performed by means of a virtual shareholders´ meetings. The incident giving rise the ruling treated the subject matter of a cooperative and partially interpreted exceptional rules adopted during the pandemic which in its initial version would have expired at the end of this year, but that recently has been extendes until 31 August 2022. Nevertheless, in our view the ruling makes some statements highly affecting also other types of corporate forms as well as the period following the expiration of the specific rules adopted to fight the pandemic.
Because the main grounds of the decision rely on the interpretation of the legal term of the shareholders´ meeting which is formulated independently for all legal forms in § 13 UmwG, showing e contrario that finally, neither the specific legislation adopted during the pandemic nor eventual peculiarities based on the legal form of the cooperative played a decisive role for the legal ruling. To the contrary, the BGH interprets the statutory provision in a way that the legal term of the shareholders´ meeting does not require any physical meeting, covering also participation granted by novel technologies, fulfilling the purpose to enable an open discussion and the possibility to influence the decisions to be taken which can also be ensured by electronic attendance via real-time connection. Neither does the requirement of a notarial recording constitute an obstacle if the chairman of the meeting and the notary public are physically present at the same place, ensuring by this way that latter can perceive and record the statements of the shareholders attending electronically. In contrast to the procedure available for the incorporation of GmbHs as of 1st August 2022 which can be completely performed online, this variant does still not allow that all other kinds of shareholders´ resolutions may be recorded by electronic means in full. However, the requirement of a mere physical attendance of the notary public and the chairman of the meeting comes very close to it and avoids the solution often practised nowadays to grant power of attorneys.
In our point of view, the BGH even tends to establish a general basic type of the legal term of shareholders´ meetings for the entire German corporate law, equating online meetings with physical attendance. Certainly it is true that by making the reservation that this general term only applies unless statutory provisions or the articles of association contain diverging terms, the Court states clearly that there continue to exist differences between legal forms. For instance, the specific rule contained in § 118 AktG provides without any doubt that in the case of the German stock company (AG), an express opt-in to such real online or combined formats of shareholders´ meetings in the articles of association is required. With regard to the GmbH, the express clarification made by the BGH that electronically held shareholders´ meetings cannot be compared to resolutions in writing, but represent „real“ physical meetings, this is likely to be interpreted as joining such legal scholars supporting contrarily to the former predominant view that such kind of resolutions fall under the scope of application of § 48 para. 1 GmbHG, and thus can be held even without express authorisation in the GmbH´´’s articles of association. Nevertheless, as a precautionary measure, in practise this should still be clarified by an express provision in the articles of association. Notwithstanding the above, the German legislator is required to provide further clarification of the meaning of § 48 para. 1 GmbHG, and to furthermore allow in a general way any kind of notarial recordings of any legal acts under German law, exceeding the future possibilities limited to the incorporation of GmbHs. Because other Member States of the UE such as amongst others Austria and in the near future also Spain, on the occasion of the transposition of the Directive (EU) 2019/115 have taken the opportunity to enable this, leading automatically to an unnecessary and unjustified loss of competitiveness of German corporations in the international competition between legal orders, sometimes even driving German shareholders to perform notarial recordings abroad. It does not make any sense either from the economic perspective of German notaries public to restrict them in the use of the expensive infrastructure required for online notarial recordings exclusively allowed for incorporations of GmbHs, ending up as unemployed capital for any other type of notarial recordings.