The Higher Regional Court of Celle (OLG Celle) clarified for a German limited liability company (GmbH) that if the articles of association only require the "written form" (Schriftform) for convening shareholders' meetings, the statutory requirement for registered mail (Einschreiben) under section 51 (1) of the GmbH Act (GmbHG) is effectively and validly waived. A standard letter and proof of its dispatch are sufficient.
The plaintiff was a minority shareholder in a German limited liability company (GmbH), holding a 49 per cent stake. At a shareholders’ meeting on 11 September 2023, resolutions were passed which, amongst other things, led to the dismissal of ‘its’ managing director. The plaintiff challenged these resolutions by bringing an action for the annulment of the resolutions (Beschlussnichtigkeitsklage).
The background to this was two consecutive shareholders’ meetings. The first meeting had failed to achieve a quorum due to the plaintiff's absence; consequently, a second meeting was convened with simplified quorum requirements. The articles of association stipulated that invitations to shareholders' meetings had to be made ‘in writing’.
The plaintiff now argued that the invitations to the meetings had been formally defective. According to the legal requirement, the invitation must be sent by registered mail, section 51 (1) German Limited Liability Companies Act (GmbHG). This statutory formality had not been waived by the mere stipulation in the articles of association that invitations must be ‘in writing’. In addition, the plaintiff had in fact not received the invitation to the second meeting. Consequently, the co-shareholders or the company acted in breach of their duty of loyalty by holding the meeting, even though they became aware on the day of the meeting that the invitation had not reached the plaintiff.
The Regional Court upheld the action and declared the resolutions null and void. The company lodged an appeal against this decision with the Higher Regional Court of Celle which ruled in favour of the company.
The Celle Higher Regional Court dismissed the action. In the view of the Senate (Court of Appeal), the contested shareholder resolutions had been validly passed; the absence of the plaintiff did not preclude this.
Firstly, the court made it clear that the statutory formal requirement set out in section 51 (1), sent. 1 GmbHG (‘by registered post’) may be waived by the articles of association. The wording used in the articles of association, stipulating that the invitation must be issued ‘in writing’, is sufficient for this purpose. The concept of the written form is defined by law in section 126 German Civil Code (BGB); a simple letter signed by hand is sufficient to satisfy this requirement. If, nevertheless, the requirement for registered post were to be upheld, the provision in the articles of association would be rendered meaningless.
Furthermore, the Higher Regional Court ruled that the access rules of section 130 BGB do not apply to invitations to shareholders' meetings. Under section 130 BGB, declarations of intent only take effect upon receipt which was precisely what was lacking in the plaintiff’s case. However, that does not work in the plaintiff's favour: the invitation is not a declaration of intent requiring acknowledgement of receipt but rather a purely internal procedural act within the company. Thus, what is decisive is not whether the individual shareholder received the invitation but merely that the invitation was sent in good time. Proof that the invitation was posted is sufficient. Failure to receive the invitation is therefore not at the company’s expense but to that of the shareholder.
On this basis, and having heard the evidence, the court concluded that the plaintiff had been duly invited to the first shareholders’ meeting. As such, the second meeting was in fact a ‘second shareholders’ meeting’ within the meaning of the articles of association; the plaintiff’s absence was irrelevant to the quorum.
Finally, the Higher Regional Court also ruled out any breach of the duty of loyalty under company law. It is true that the invitation to the second meeting had not in fact been received by the plaintiff. The co-shareholders and the company, however, only became aware of this on the day of the meeting itself. In the view of the Senate, there was no obligation to cancel the meeting at short notice or to actively investigate whether the invitation had been received in advance.
The decision of the Celle Higher Regional Court brings noticeable relief for the GmbH practice and contains important clarifications.
First of all, the court confirms the prevailing opinion that the statutory invitation by registered mail pursuant to section 51 (1) sent. 1 GmbHG is dispositive. If the articles of association provide for ‘written form’, the invitation can be sent by simple letter. If the articles of association provide for the invitation to be in ‘text form’, it is even sufficient to send it by email, text message or WhatsApp.
The statement of the Celle Higher Regional Court on the proof of access is particularly relevant in practice. Companies do not have to prove that an invitation has actually been received by all shareholders. It is sufficient to demonstrate and, if necessary, provide evidence that it was sent in good time. From the company’s perspective, this significantly reduces the risk of formal challenges. Any errors in delivery are the responsibility of the shareholders. Nevertheless, risks remain for the company as well.
If the company learns that a shareholder has not received an invitation before the meeting begins, there may be a duty of loyalty to be exercised in individual cases. This ruling by the Celle Higher Regional Court does not generally rule out a breach of the duty of loyalty in such circumstances but merely finds that no breach occurred on the basis of the specific circumstances of the case (information only becoming known on the day of the meeting; the plaintiff's absence from both meetings).
In practice, it is advisable to set out clearly and unambiguously in the articles of association the form and method by which invitations to shareholders’ meetings are to be issued (e.g. in writing or in text form, by post, by email, or by email with read receipt). Those wishing to minimise the risk of challenges may continue to send invitations for important resolutions by registered post, thus documenting both dispatch and receipt.
OLG Celle, ruling dated 9 July 2025 – 9 U 64/24
Dr Barbara Mayer
Daniel Rombach
This post also appears in the Haufe Wirtschaftsrechtsnewsletter.
