Shareholder resolutions piercing the articles of association in German limited liability company (GmbH) and stock corporation (AG)

• Applicant: Privatdozent Dr. Moritz Pöschke
• Subject Area: Private Law
• Term: Funded in 2020
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 440372384

The book examines the legal concept of "Shareholder resolutions piercing the articles of association", which has been established in German company law for almost L00 years. ln principle, the concept refers to resolutions that deviate from the provisions of the articles in an individual case, but leave the articles unchanged for the future. However, the opinions in court decisions and legal literature on this legal figure are highly fragmented and there is great legal uncertainty in practice. The book, therefore, begins - after an introductory presentation of the topic and the usual explanations on the course of the presentation and the definition of the object of investigation - with a detailed presentation of the state of opinion. The connections between the individual opinions are emphasized and contradictions are pointed out. Subsequently, the work examines the content of resolutions piercing the articles of association in various constellations on the basis of the prevailing corporate law understanding of resolutions. As core thesis of the work, which is also supported by a historical comparison with the Weimarer Reichsverfassung and a comparative legal examination with Austrian law, it emerges that a resolution piercing the articles of association usually contains two parts: a resolution on the specific measure (i.e. the specific measure contrary to the articles of association for the individual case) and an amendment to the articles of association for the individual case, through which the resolution on the specific measure contrary to the articles of association is legitimized. ln the author's view, the validity of these two parts of the resolution must be assessed separately. The part of the resolution containing the specific measure can only be challenged by way of an Anfechtungsklage. The amendment of the articles of association for the individual case is in many cases valid under simplified conditions (compared to normal amendments to the articles of association), in particular the notarization of the resolution and the entry in the commercial register are often not required. On this basis, the work develops a dogmatically coherent and practically manageable concept of the overall subject. ln addition, the situation that that the Articles of Association contain so-called opening clauses according to which, in individual cases, the provisions of the Articles of Association may be deviated from by shareholders' resolution, is closely examined.

• DFG Programme: Publication Grants