§ 46 Duties of shareholders

Importance for legal relations and transactions

a) § 46 GmbHG from the shareholders’ perspective

For 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.

However, 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.

As 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.

In 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.

As 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.

However, 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.

The 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

For 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

From 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.