§ 46 Duties of shareholders
The following shall be subject to the shareholders’ disposition:
- 1. The approval of the annual financial statements and the appropriation of earnings;
- 1a. Decisions concerning the disclosure of separate financial statements in accordance with international accounting standards (section 325 (2a) of the Commercial Code) and concerning the approval of the financial statements prepared by the directors;
- 1b. The approval of consolidated financial statements prepared by the directors;
- 2. The calling in of capital contributions;
- 3. The repayment of additional contributions;
- 4. The division of, grouping and collection of shares;
- 5. The appointment and dismissal of the directors, as well as their discharge;
- 6. The regulation of audits and oversight of the management;
- 7. The appointment of those vested with the general commercial power of representation and those vested with the commercial power of attorney for the entire business establishment;
- 8. The assertion of claims for compensation to which the company is entitled from the formation or the management is entitled vis-à-vis directors or shareholders, as well as the representation of the company in proceedings being conducted against the directors.
Information for non-professionals
Relevance for legal relations
Importance for legal relations and transactions
a) § 46 GmbHG from the shareholders’ perspective
1For the shareholders of a GmbH (German limited liability company), § 46 GmbHG (German Act on limited liability companies) is one of the key provisions of the GmbHG. § 46 GmbHG is about the rights and powers which the shareholders of a GmbH are entitled to exercise jointly. Regardless thereof, each shareholder of a GmbH is also individually entitled to certain rights, such as the right to information and inspection according to § 51a GmbHG.
2However, the powers of the shareholders as a corporate whole – the so-called shareholders’ assembly – go beyond the individual shareholders’ rights. After all, pursuant to the legislator’s concept, the shareholders’ assembly is the supreme executive body of a typical GmbH.Karsten Schmidt in: Scholz, GmbHG, 11th ed. (2014), vol. II, § 45 para. 5; Liebscher in: Münchener Kommentar zum GmbHG, vol. II, 2nd ed. (2016), § 45 para. 81. As a rule, the shareholders as the owners of the GmbH have overarching responsibility and authority. Zöllner/Noack in: Baumbach/Hueck, GmbHG, 21st ed. (2017), § 46 para. 91; Karsten Schmidt in: Scholz, GmbHG, 11th ed. (2014), vol. II, § 46 para. 1. Generally, the shareholders’ assembly may by way of resolution declare itself solely responsible for any decision and give instructions to the managing directors.
3As to the details, which is explicitly stipulated by § 45 GmbHG, the rights of the shareholders as a corporate whole are governed by the articles of association (“Gesellschaftsvertrag”). Thus, as a rule, the shareholders themselves are responsible for assigning the powers and authorities to the different executive bodies of the GmbH. Only if, and to the extent that the articles of association do not contain special provisions or the provisions of the articles of association are contrary to mandatory law, the shareholders’ rights and powers are defined by and subject to the applicable statutory provisions.
4In this context, for the shareholders, § 46 GmbHG is the central provision. § 46 GmbHG lists a series of issues that are subject to the shareholders’ decision. If and to the extent the articles of association do not contain provisions to the contrary, the issues listed in § 46 No. 1 – 8 GmbHG thus are subject to the shareholders’ resolution.
5As a rule, the shareholders exercise their powers by passing resolutions (§ 47 subs. I GmbHG) in shareholders’ meetings (§ 48 GmbHG) according to the procedures and requirements stipulated in the articles of associations resp. in §§ 45 et seqq. GmbHG.See the comments on §§ 47 to 51 GmbHG for further details regarding the adoption of resolutions.
6However, the list of responsibilities in § 46 GmbHG is not exhaustive. Further rights and responsibilities of the shareholders are also stipulated in other provisions of the GmbHG.Cf. e.g. § 53 subs. I GmbHG, § 37 subs. I GmbHG and the survey of further responsibilities in chapter II.2.11 of these comments. In addition, further rights and responsibilities of the shareholders are also defined by other laws. Cf. e.g. § 13 subs. I Umwandlungsgesetz (German Company Transformation Act – “UmwG”) and the survey of further responsibilities in chapter II.2.11 of these comments.
7The list contained in § 46 GmbHG is not mandatory. Rather, as can be seen from § 45 GmbHG, the shareholders are entitled to restrict or extend the shareholders’ responsibilities by appropriate provisions in the articles of association.See the comments on the various numbers of § 46 GmbHG for options to restrict the relevant responsibilities of the shareholders’ assembly and chapter II.2.11 for a survey of further responsibilities.
b) § 46 GmbHG from the managing directors’ perspective
8For the managing directors of a GmbH, § 46 GmbHG is important because the managing directors are not allowed to decide on their own on the issues which, by virtue of § 46 GmbHG or the articles of association, are assigned to the responsibility of the shareholders’ assembly. The responsibility for deciding on these issues rather lies exclusively with the shareholders of the GmbH as a corporate whole.
c) § 46 GmbHG from third parties’ perspective
9From the perspective of third parties, § 46 GmbHG is of subordinate importance only because the provision primarily pertains to the responsibilities of the different executive bodies within the company but not the managing directors’ authority to represent the company.Cf. in this context also § 37 GmbHG.
Information for legal professionals
10§ 46 GmbHG is one of the key competence regulations of the GmbHG. It assigns certain issues and transactions to the responsibility of the shareholders’ assembly and thus withdraws it from the managing directors’ responsibility. However, the list of responsibilities contained in § 46 GmbHG is neither complete nor exhaustive.
a) Adoption of the annual financial statements and profit appropriation (No. 1)
15Pursuant to the law, one has to distinguish between drawing up and adopting the annual financial statements. § 46 No. 1 GmbHG provides that the adoption of the financial statements as well as the decision on profit appropriation is the shareholders’ responsibility whereas pursuant to § 263 subs.