Germany: BGH Clarifies Strict Invitation Requirements for GmbH Shareholders’ Meetings

A recent decision of the German Federal Court of Justice (BGH) highlights the importance of strictly observing formal requirements when convening shareholders’ meetings of a German limited liability company (GmbH).

In its judgment of 5 May 2026 (case no. II ZR 2/25), the BGH confirmed that where two companies are shareholders of the same GmbH and are represented by the same managing director, each shareholder must nevertheless be invited separately to the shareholders’ meeting.

A failure to do so can have significant consequences, including the invalidity of resolutions passed at the meeting and, in certain circumstances, risks for contracts entered into on the basis of those resolutions.

The Shareholders’ List Is Decisive

Under section 16(1) sentence 1 of the German Limited Liability Companies Act (GmbHG), the person or entity entered in the shareholders’ list filed with the commercial register is generally treated as the shareholder in relation to the company.

That status includes important membership rights, including the right to participate in shareholders’ meetings and to receive a proper invitation.

The BGH confirmed that this formal position is decisive even where the register does not accurately reflect the underlying ownership position.

Companies should therefore not assume that actual knowledge of the ownership structure is sufficient.

The Case

The dispute concerned a GmbH whose shareholders’ list incorrectly identified one company as a shareholder, even though another company was the actual holder of the relevant interest.

The same individual acted as managing director of both companies.

When a shareholders’ meeting was convened, the actual shareholder received an invitation, while the company formally listed in the commercial register did not receive a proper summons.

The listed company only received an amended agenda.

At the meeting, resolutions were passed authorising management to enter into financing arrangements connected with pending arbitration proceedings.

The company later challenged the validity of the resulting litigation financing agreement on the basis that the shareholders’ meeting had not been convened correctly.

The BGH’s Decision

The BGH confirmed that the company appearing in the formal shareholders’ list should have been invited separately.

The fact that its managing director already knew about the meeting because he also represented another shareholder did not cure the defect.

The Court therefore made clear that knowledge obtained in one representative capacity cannot substitute for a formal invitation sent to another company.

In practical terms, each registered shareholder must be treated as a separate legal person and invited individually.

Consequences of an Incorrect Invitation

A failure to invite a registered shareholder properly can result in defects in the convening of the meeting and may render resolutions passed at that meeting void.

The commercial consequences can extend beyond the meeting itself.

Where subsequent contracts or transactions depend on a valid shareholder resolution, the validity of those arrangements may also be called into question in certain circumstances.

This creates potential liability and transaction risk for managing directors and the company.

What Companies Should Do

Before convening a GmbH shareholders’ meeting, companies should:

• review the current shareholders’ list filed with the commercial register;

• ensure that the register accurately reflects the intended ownership structure;

• invite every registered shareholder separately;

• comply carefully with applicable notice periods, form requirements and agenda requirements; and

• retain evidence that invitations were properly issued.

Particular care should be taken where the same individual represents more than one shareholder or where there have been recent changes to the ownership structure.

Key Takeaway

The BGH decision confirms that the rules governing GmbH shareholders’ meetings must be approached formally and carefully.

Even where all relevant individuals are aware that a meeting is taking place, this does not necessarily replace the requirement to invite each registered shareholder correctly.

For German companies and international groups with German GmbH subsidiaries, careful corporate housekeeping remains essential to protecting the validity of shareholder decisions and the transactions that depend on them.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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