From notary Dr. Stefan Heinze, Cologne
Updated May 24, 2019, Dr. Stefan Heinze:
As expected, the discussed decision has received a lot of attention. Already now numerous comments from the literature have been published, for example:
Ulrich, GmbHR 2019, 535;
Pfeiffer, BB 2019, 1107;
Bunger/Evertz, EWiR 2019, 263;
Breschendorf, GWR 2019, 145
Schulze/Schlütter-Lückel, jurisPR-HaGesR 4/2019 Anm. 1.
The decision is predominantly received positively, although questions of doubt have also been raised, such as the question of the required majority for a shareholder resolution in the event of possible misuse of the power of representation, or whether in individual cases notarisation by a notary is possible because of an otherwise inadmissible breach of the articles of association.
As of April 9, 2019
The Federal Court of Justice decided that § 179a AktG is not applicable analogously to the GmbH. This decision is a bombshell. A large number of comments are expected to be received on this issue. The practical consequences are not yet fully foreseeable. An initial assessment is to be made at this point. The decision can be accessed at www.bundesgerichtshof.de; it will soon be available on the Internet. As far as I refer to the decision, I will try to quote the paragraphs quoted there as accurately as possible. All contributions at this point are specialist scientific contributions. They merely reflect the personal opinion of the author. They do not contain any legal advice or recommendations for a specific case. The “use” is at your own risk.
1. The underlying facts and the decision of the previous instance
Even the decision of the lower instance had caused a certain stir (OLG Brandenburg of 29 March 2018, http://www.gerichtsentscheidungen.berlin-brandenburg.de, 5 U 18/16). However, that court took a much narrower approach to § 179a AktG. The OLG did not generally deny the analogous application of this provision, but at least in cases where the shareholders of the GmbH have already decided on liquidation (loc. cit., para. 22). The guiding principle of the BGH, however, is comprehensive and categorical. The Court of Justice could certainly have been content with a narrower approach, as advocated by the OLG. Obviously, however, there was a need for comprehensive clarification of this highly controversial legal issue.
The facts of the decision are certainly not commonplace. The two shareholders of a commercial limited liability company (subject matter: trade/manufacturing/repair/assembly of doors) decided to liquidate the company. They both appointed themselves as liquidators. The property was to be sold. One shareholder expressed interest in an acquisition; a third buyer apparently offered more. The other shareholder sold the property (apparently while negotiations with his co-shareholder were still ongoing) as liquidator on behalf of the GmbH to an acquirer. The company then filed an action for cancellation of a priority notice (apparently because the purchase agreement was still in the initial phase of its liquidation). The GmbH argued that the liquidator’s power of representation was lacking. On the one hand, it invoked the analogous applicability of § 179a of the German Stock Corporation Act (AktG); on the other hand, it invoked the principles of the so-called abuse of power of representation. The Higher Regional Court dismissed the action on both grounds; the Federal Court of Justice (BGH) held that misuse of the power of representation was possible here and dismissed the legal dispute. Both issues (§ 179a AktG analogously; abuse of power of representation) have considerable practical relevance.
A few critical remarks on the BGH’s argumentation regarding an analogy to § 179a AktG
Mechanism and conflict situation
a) The Federal Court of Justice (BGH) firstly presents the effect of Section 179a of the German Stock Corporation Act (AktG) in the law of the stock corporation. There the effect of this provision is directly ordered. If a resolution pursuant to § 179a AktG is lacking, the prevailing opinion is that the executive board lacks the power of representation to conclude the commitment transaction; if the general meeting refuses to approve the resolution, the commitment transaction becomes finally invalid (BGH, loc. cit., marginal no. 10). The court then presents the state of the debate in the literature and correctly emphasises that the predominant literature considers the corresponding application of § 179a AktG to be applicable also in the law of the GmbH. This means that a shareholders’ resolution is also required in the law of the GmbH in order to give effect to the agreement. Such regulations are of course of considerable importance. This is because in the law of corporations under German law, there is a considerable degree of confidence on the part of legal transactions in the ability of the executive bodies to effectively conclude legal transactions in the external relationship. Consequently, § 37 Paragraph 2 S. 1 GmbHG and § 82 Paragraph 1 AktG stipulate the unlimited power of representation of the managing directors/the members of the executive board. Admittedly these norms do not have an absolute claim to absoluteness. Thus, merger agreements require the approval of the shareholders’ meeting or the general meeting of the acquiring and transferring legal entity in order to be effective, irrespective of these standards, in accordance with § 13 Paragraph 1 UmwG. And § 179a AktG is an explicit exception to this principle. But in view of this, it is understandable, at least in the starting point, that the question should be asked whether such a breakthrough of the unlimited power of representation should be achieved by analogous application.
BGH interprets statements from II ZR 24/94 by
b) The Federal Court of Justice initially states, contrary to what is probably the prevailing understanding, that it has not yet expressed an opinion on this question (para. 15). This refers to a decision of 9 January 1995 (II ZR 24/94, available at www.jurion.de). At that time, § 361 of the Stock Corporation Act was still in force, but its content corresponded to today’s § 179a of the Stock Corporation Act. In that decision, the BGH first explained the function of § 361 AktG and then stated (para. 7):
“The legal concept of this provision, which h.M. considers to be applicable to the GmbH accordingly …, also applies to the law on partnerships.”
This statement is hardly ambiguous. It can actually only be understood in such a way that § 361 AktG applies analogously in partnership law. The Federal Court of Justice did indeed not expressly comment on the law on limited liability companies, especially as the facts of the case did not relate to a limited liability company case at the time. However, the law of the GmbH is structurally closer to that of the stock corporation than to that of partnerships; a first-law conclusion was almost inevitable. And the inserted relative clause could only make sense to an observer who was anxious to understand that the Federal Court of Justice also assumed that the law on limited liability companies would apply accordingly. Accordingly, the then member of the Second Civil Senate (Goette) also wrote that the BGH took from § 361 of the German Stock Corporation Act (AktG) an idea that was generally applicable to company law (Goette, DStR 1995, 425, 426).
It does occasionally happen that the Federal Court of Justice claims ex post that a decision had a different objective explanatory value than that which the majority of contemporary observers attributed to it. But such assertions naturally have little authority. An observer who strives for understanding will not base his understanding of the 1995 decision on what the BGH prescribes for him in 2019, but rather on the objective explanatory value of the decision. And Goette’s statement is of course not that of the Senate; but it is hardly to be blamed that the decision was almost unanimously interpreted as Goette suggested. Therefore it would have been more honest to declare that the 1995 decision was no longer being adhered to, insofar as anything to the contrary results from it.
It is also incomprehensible why the Federal Court of Justice does not take this decision as an opportunity to clarify the law governing partnerships. In the present case, it merely refers to the decision from 1995 and states that this decision was issued on the law of partnerships. In practice, this means that the problem of § 179 a of the German Stock Corporation Act (by analogy), including the associated follow-up questions in the area of the partnership, has not yet been resolved; see for example OLG Düsseldorf NZG 2018, 297.
No recourse to the failed draft of a GmbH reform from the 1970s
c) The BGH provides a detailed description of the genesis of § 179a AktG and its provisions and goes back to § 303 HGB from 1897 (margin no. 18-20). It then states that the failed draft of the GmbH reform of 1973 contained a § 286 GmbHGE which corresponded to the then § 361 AktG (the current § 179a AktG). The Federal Court of Justice could certainly have justified its result by stating that the legislator considered a statutory regulation to be necessary but did not introduce it. However, the BGH rejects this argument (para. 21). The failure of the 1973 reform is neither an argument for nor against a possible analogy of § 179a AktG in GmbH law. In this respect, the BGH follows the supermarket decision on group law (24.10.1988, II ZB 7/88, www.jurion.de). This decision dealt with the question of group entrance control in GmbH law, which was and is not regulated by law. There, too, the argument was put forward that an analogous application of § 293 AktG to the GmbH could not be considered because the legislator did not codify the GmbH group law, which was again intended in the draft of 1973. The BGH rejected this argumentation and affirmed there the analogy to § 293 AktG (marginal 32), since the draft had been rejected for other reasons and only in very reduced form became finally part of the GmbH reform of 1980.
The draft from 1973 (BT-Drucksache VI/3088) is still informative and instructive and shows what could have become of the GmbH law. But for legal arguments for the decision of concrete legal cases, the Federal Court of Justice does not seem to be inclined to allow arguments based on this – neither to affirm nor to deny analogies. Caution is advised here.
Central arguments: Impairment of the unrestricted power of representation; divergent interests compared to the stock corporation law
d) The decisive factor for the rejection of the analogy was therefore not the reverse conclusion from the failed draft of 1973. Instead, the Federal Court of Justice focuses centrally on substantive arguments. These are essentially (summarised in marginal 22)
The restriction of the power of representation in external relations is alien to the system and therefore associated with legal uncertainty and liability risks. According to the legal framework, shareholders of a GmbH can determine and control the management of the company much more effectively than shareholders. This corresponds to a lower need for protection. The protective purpose of § 179a AktG is maintained in the GmbH in some areas in a different way. The BGH presents the differing views and explains in detail why it may not follow them. The argument of a lack of legal certainty and the possibility of a cure if § 179a AktG is violated unrecognised (para. 26) is certainly weighty. But in practice, it is now good practice to review the requirements of § 179a AktG and, if necessary, to point out the need for a resolution to that effect.
One can praise or criticize the BGH’s decision to weigh up the arguments against an analogy. However, the decision has now been made and is binding in practice. Contrary to the assumption of the Federal Court of Justice, however, this is not associated with a strengthening of legal certainty.
3. Stones instead of bread: misuse of the power of representation as a protective instrument?
§ 179a AktGwas manageable
a) Although legal uncertainty may have been associated with an analogous applicability of § 179 a of the German Stock Corporation Act and the associated restriction of the power of representation, the Federal Court of Justice itself set a limit which can be handled quite well in this respect, namely in the famous Holzmüller decision (BGH, 25 February 1982, II ZR 174/80, BGHZ 83, 122, available at www.jurion.de). According to this decision, Section 361 of the German Stock Corporation Act (now: Section 179a of the German Stock Corporation Act) is no longer applicable if the company with the retained business assets is still sufficiently capable of pursuing its own corporate objectives as defined in the Articles of Association, albeit to a limited extent (BGH loc. cit., marginal no. 17). In the Holzmüller ruling, the Federal Court of Justice held that this condition was met because a retained business unit (wood business) was suitable for and in particular intended for further own business activities (BGH loc.cit., marginal no. 18). In the literature it has also been suggested that quantitative delimitation criteria should be used, for example in line with § 1365 BGB (see Weber, DNotZ 2018, 96, 105/106 mwN). All this is not in every respect selective. But there was in any case overwhelmingly agreement that in the case of a sale of individual objects (only this causes any difficulties at all) below a certain threshold, § 179 a Aktiengesetz was definitely not realised (90%, at least 85%; compare Weber, DNotZ 2018, 96, 106).in other words: it was possibly not possible to say exactly in which cases § 179 a Aktiengesetz was realised in the sale of individual objects. However, it was possible to estimate quite precisely at what threshold this was clearly no longer the case.
Misuse of power of representation: open flank
b) The Federal Court of Justice now sees the way out in the legal institution of the abuse of power of representation, an institution founded in the general part of civil law. The cases in which representatives and contractual partners collude to the detriment of the person represented are less interesting in practice; in any case, it is then not a question of the trust of legal transactions in the power of representation of the managing director because such trust is lacking.
But an abuse of the power of representation with effect in the external relationship can also exist even below this threshold. Even without positive knowledge an abuse of the power of representation can exist if the managing director exceeds his obligations from the internal relationship and this is evident to the contractual partner under the circumstances (BGH NJW 2006, 2776; Zöllner/Noack in: Baumbach/Hueck, 21st edition 2017, GmbHG § 37 marginal no. 47 mwN). This is in principle nothing new. However, great restraint has so far been exercised in the assumption of an abuse of power of representation. This is because the fundamental decisions of the legislature, which the Federal Court of Justice also emphasises here (unlimited power of representation in external relationships, § 37 Paragraph 2 S. 1 GmbHG, § 82 Paragraph 1 AktG, § 126 Paragraph 2 HGB; § 27 Paragraph 2 S. 1 GenG) must also put a stop to excessive acceptance of the evidence required here. In particular, there is regularly no obligation to make inquiries (Palandt/Ellenberger, 78th edition 2019, BGB § 164 marginal 14 mwN; Stephan/Tieves in: MünchKommGmbHG, 3rd edition 2019, GmbHG § 37 marginal nos. 172-178 mwN). Thus, it has been rightly argued up to now that the legal institution of the abuse of power of representation in these areas of company law is critical if the contracting party does not have positive knowledge of it. The contractual partner was not deemed to be obliged to conduct investigations of its own accord into the internal circumstances of the company. This also applies if the articles of association contain any reservations regarding a managing director’s approval because such reservations of approval often contain considerable scope for interpretation (Stephan/Tieves, loc.cit., GmbHG § 37 marginal nos. 182, 183). This is unreservedly correct.
c) The Federal Court of Justice potentially deviates from this in the decision discussed. Initially, it remains within the previous framework insofar as it states that the transgression of the internal relationship must be imposed on the contracting party according to the circumstances (para. 41). However, the following statements are new and important: Such “imposing” is often to be assumed if the entire business is to be transferred as such. It must be clear to a reasonable contractual partner that the managing director cannot detach the GmbH without the consent of the shareholders. However, even if, as in the present case, only a single asset is to be transferred with a property, it may be necessary, depending on the circumstances of the individual case, for the managing director not to be able to carry out the transaction without reassurance from the shareholders because of its significance for the company. In marginal no. 42, the Federal Court of Justice once again specifies this: If there is a reservation of consent in favour of the partners’ meeting, whether it is additionally necessary that the contracting party is aware of the lack of consent or the lack of a consent resolution is imposed on it in order to deny protection to the trust in the existence of the transaction. In this context, however, it may not always be sufficient under the circumstances of the individual case for the contracting party to defend itself by claiming that it was unaware of the lack of consent. If, for example, the company is sold as a whole, the contractual partner of the company may be obliged to make inquiries. In the case of the sale of an individual object, the abuse may become apparent if the contractual partner learns that a controlling shareholder does not agree with the transaction.
d) These explanations tend to be problematic. First of all, the question arises as to when it can be assumed that the company as a whole will be sold. This could be the case, for example, if a sale of the company is actually carried out in its entirety, which would also lead to the opening of the scope of application of § 311 b para. 3BGB. It is also conceivable, however, that the sale of groups of individual objects is in fact the existence of the enterprise as a whole. In such cases, case law denies the applicability of § 311 b para. 3 BGB if the object constitutes practically the entire assets (OLG Düsseldorf, 23.11.2017, I-6 U 225/16, BeckRS 2017, 133913, marginal no. 54 with reference to BGH 30.10.1990, IX ZR 9/90, marginal no. 36 and to BGHZ 25, 4). It is therefore unclear when a sale of the company as a whole is involved; does the Federal Court of Justice intend to make the inquiry and then affirm it when the threshold of § 179 a Aktiengesetz (assuming its hypothetical applicability) is exceeded, or only when the requirements of § 311 b(3) BGB are complied with? Presumably the BGH means this as a substitute for the application of § 179a AktG without saying so. But the uncertainty it emphasises, which the analogous applicability of § 179a AktG supposedly causes, is then transported via a much less precise vehicle. The BGH unfortunately avoids the formation of corresponding contours.
The debate so far will thus be conducted in a new guise from the point of view of what exactly is meant by ‘sale of the company as a whole’ in accordance with recital 42. The further question is whether the criterion of evidence should also be applied to the preceding question is when it must be apparent to the purchaser that a sale as a whole exists. § Section 179a of the German Stock Corporation Act does not refer to subjective moments on the part of the purchaser. If it is certain that the company is being sold as a whole, the Federal Court of Justice apparently wants to affirm the obligation to make inquiries without also being committed to all cases in this respect. But does the purchaser have to know that the company is being sold as a whole or does this circumstance also have to force itself upon the purchaser? It also remains completely unclear with which majority such a decisive shareholder resolution would have to be passed. § Section 179a of the German Stock Corporation Act contains clear specifications in this respect; the Federal Court of Justice leaves legal transactions in the dark, especially since the existence of a reservation of consent in the articles of association is not important at all; in the facts of the case, the existence of such a catalogue is not even discussed at all.
e) Even more problematic is the last sentence of the BGH decision: In the case of the sale of a single object, the abuse may become apparent if the contracting party learns that a controlling shareholder does not agree with the transaction. This consideration was decisive in the present case. Although the liquidator has sold the property (the sale of corporate assets is typical in the case of liquidation), the Federal Court of Justice considers an abuse of the power of representation possible if it was forced upon the acquirer that the liquidator had disregarded the objection of his co-partner. The term “authoritative” shareholder is not defined, neither by the Federal Court of Justice nor in the legal system. The question as to what percentage of shareholding a shareholder is decisive is open. Minority shareholders could be tempted to block legal transactions by declaring to prospective contractual partners of the company their opposition to the transactions carried out by the managing director and declaring that they are authoritative shareholders. Some minority shareholders may discover a potential for blackmail through such behaviour.
Which majority should be decisive? The law assumes a simple majority and only in special cases a qualified majority (e.g. § 53 GmbH-Gesetz and § 60 GmbH-Gesetz) One could assume that if a dissolution resolution has been passed (liquidation), a qualified majority according to § 60 GmbHG cannot be decisive. Because the basic decision for the silvering of the company assets was made with the dissolution resolution. Then one could consider that a simple majority is sufficient. But here, too, there are no clear guidelines, which were provided by § 179a AktG in any case regarding the necessary majority requirements.
f) In any case, the Federal Court of Justice expressly does not restrict linguistically marginal no. 42 at the end in such a way that the individual subject matter of the contract must be essentially the entire assets of the company, whereby the quantitative and qualitative criteria for § 179a of the Stock Corporation Act would have to be applied. It remains to be hoped that the Federal Court of Justice meant this in this way and does not regard any individual object as covered. This is supported by the fact that the Federal Court of Justice refers in para. 47 to “particularly significant” transactions. Are these possibly (going beyond § 179a AktG) all those transactions to which the Holzmüller Principles apply in a stock corporation? These would then be measures which are still covered by the power of representation of the executive board, but which nevertheless interfere so deeply with the membership rights of the shareholders and their pecuniary interests embodied in the share ownership that the executive board cannot reasonably assume that it may take them on its own responsibility without involving the general meeting (BGH 25.02.1982, II ZR 174/80, para. 22). In GmbH law, can it come to the situation that in the case of particularly significant transactions (which possibly also includes Holzmüller transactions) there is an obligation to make inquiries and evidence is considered ?
All these questions are raised by the new decision without offering satisfactory solutions. In practice, the problem of when an approving shareholder resolution is to be obtained for an asset deal and, if applicable, by what majority, has not been satisfactorily resolved; it is also unclear in what way a distinction is to be made between overall asset transactions/disposal of individual assets, and whether a distinction is to be made between companies that are advertising and those that are in liquidation. Finally, the legal situation also remains unclear in partnership law (here one will have to assume the continued validity of Decision II ZR 24/94), in association law (there the scope of the power of representation can admittedly be limited by the articles of association, § 26.1 sentence 3 BGB) and in cooperative law. It remains to be hoped that the Federal Court of Justice will not also form another case group in stock corporation law between the directly applicable § 179a AktG and the Holzmüller cases, which have so far had no effect on the external relationship.
4. Summary/practical implications
The decision of the BGH creates legal clarity on the one hand: Section 179a AktG is not analogously applicable to the GmbH. However, the price with which this is bought is too high. On the one hand, the analogous application of § 179a AktG is still to be assumed for partnerships, which is incomprehensible because these resemble the AG much less than the GmbH. In this case, however, practice will have to assume that the BGH decision has not brought about any change. On the other hand, doubts persist in the area of legally responsible associations and cooperatives.
The alternative solution concept is not convincing. The abuse of the power of representation as a legal institution should be handled very restrictively, especially as far as “evidence” is concerned in the absence of positive knowledge of the contractual partner. It remains open when what is evident (sale of the entire company; sale of particularly significant individual items; lack of a resolution of approval with which majority; possible differentiation between the advertising company and the dissolved company). In transaction practice, demands for approval resolutions are more likely to occur more frequently than under the assumed application of Section 179a AktG. In any case, whenever the facts of § 179a AktG (analogously) could have been affirmed according to the previous principles, as a precautionary measure one will insist as a business partner that an approval resolution of the shareholders’ meeting be passed before notarisation, and for safety’s sake still with at least a majority of 75 percent of the share capital. The seller’s articles of association should be consulted in order to check them for any special reservations of consent. Regrettably, it remains unclear after the new decision whether appropriate measures are to be taken even below this threshold (is a single asset already particularly significant if it is a significant operating basis for tax purposes?).