GmbH: When shareholders can request court-appointed reviewers

Section 45 GmbHG lets shareholders ask the Commercial Court for the company seat to appoint expert reviewers for the last annual accounts. The route requires a shareholder resolution rejecting a request for that appointment. Applicants must also meet one of the statutory shareholding thresholds and make credible that dishonesty or a serious breach of law or the articles has occurred.

The provision links a defined subject of review with a prior shareholder vote and specific grounds. This guide explains those conditions and the principal effects of an application.

Section 45 GmbHG concerns the last annual accounts

Section 45 identifies the last annual accounts as the subject of review. Link the disputed entries, contracts or resolutions to those accounts and identify the financial year concerned. This makes clear which events the reviewer is being asked to examine.

In 6 Ob 3/88 of 11 February 1988, the OGH related the statutory special audit to business events from the completed financial year. That decision is a historical interpretive authority. The current wording of section 45 GmbHG expressly ties the application to the last annual accounts.

A rejected shareholder resolution comes first

The earlier request must seek the appointment of expert reviewers for the last annual accounts. Section 45 requires the shareholders to reject that request by resolution. A vote to approve or reject the accounts, a discharge resolution or general criticism of management does not by itself establish this specific step.

A message from management does not, by itself, record a rejected shareholder resolution. Keep the agenda, the request, the proposed wording and the meeting record. For a written resolution, preserve the request and the result as well.

Which shareholding qualifies?

Section 45 provides two alternative thresholds. The applying shareholders’ capital contributions must together amount to at least one tenth of the share capital or a nominal amount of EUR 700,000. The applicant group does not have to meet both alternatives at once.

For the calculation, identify the current share capital and the nominal amounts of the applicants’ shares. Set out each contribution and the total so the comparison can be checked. A percentage without its underlying calculation is difficult to assess.

What grounds must be made credible?

The court may grant the application only if it is made credible that dishonesty or a serious breach of law or the articles has occurred. These statutory grounds are alternatives. Identify the concrete facts that support at least one of them.

For each event, record its date or period, the people or company bodies involved, the available records and its connection with the annual accounts. An unsatisfactory business result alone does not identify the alleged dishonesty or serious breach. The guide to preparing a GmbH special audit explains how to organise the suspicion, review question and documents.

What does the Commercial Court do?

Section 45 assigns the application to the Commercial Court for the company seat. Depending on the circumstances, the court appoints one or more reviewers. The statute refers to lists to be established by regulation; the court decides the number and appointment.

The managing directors and supervisory board must be heard before appointment. For a clear application, organise the rejected request, last annual accounts, shareholding calculation and records concerning the alleged events. This arrangement makes the review scope easier to identify and does not replace any statutory condition.

Consider the effect on shares and security

While the review is pending, the applying shareholders may not sell their shares without the company’s consent. Anyone planning a transfer should take this statutory restriction into account.

The court may, upon request, make the appointment conditional on security. The court sets the amount in its discretion. Section 45 specifies no fixed sum, and security is not automatically required in every application.

Reviewers must protect business secrets

Before appointment, reviewers must undertake to perform their duties conscientiously and keep confidential the company and business secrets they learn. Confidentiality is expressly included in the statutory procedure.

Identify the records that relate to the review and connect each to the relevant event. This helps show which information bears on the application and gives the court a clear basis for defining the subject of review.

Choose the route that matches the issue

If the immediate problem is a missing copy or access to the annual accounts, the guide to shareholder rights concerning annual accounts covers that separate issue. Section 45 adds the rejected request for reviewers and the statutory grounds.

A court-appointed emergency managing director concerns representation where a GmbH cannot act; see the guide to that appointment. A dispute over a capital increase raises the separate subscription-right question explained in the guide to minority subscription rights. Each route has its own purpose.

Common questions