Pursuant to a decision of the German federal supreme court (BGH) shareholder resolutions passed at the premises of an opposing shareholder are usually contestable, but not void. A respective convocation may constitute an unjust choice of venue und consequently a forbidden impairment of the other shareholder's right of attendance. This may also be the case if shareholders are in dispute and the shareholders meeting is convened at the offices of the legal advisor to one of the shareholders. In such cases the shareholder concerned is forced to meet in surroundings, which - other than to the opponent - are unfamiliar to the shareholder. Still, the defective invitation does in the BGH's opinion normally not impede the shareholder's right of attendance to an extent which would approximate a complete exclusion of the shareholder from attending the meeting. Therefore, resolutions passed at such a meeting are contestable but not void, unless in exceptional cases.

In the decision the BGH has furthermore specified that the provision under German insolvency law stipulating that even a managing director who has not been granted sole power of representation may single-handedly file for insolvency single-handedly (sec. 15 sub-sec. 1 sentences 1, 2 German Insolvency Act, InsO) does exclusively apply to filings for the opening of insolvency proceedings. For applications for the discontinuation of insolvency proceedings based on the insolvency grounds having ceased to exist (sec. 212 InsO) joint representation is required if no authority to act alone has been granted.

Please click here for the German text of the decision. If you are interested in further information on this topic, please do not hesitate to contact Christine Oppenhoff.