Review the written proxy, scope and production at the meeting.
Obtain the proxy, revocations, replacement proxies and the evidence produced at the meeting. Section 39(3) GmbHG requires a written proxy; the articles may add requirements.
GmbH voting proxy in a dispute: review the representative, instructions and voting ban
A disputed voting proxy may change the result of a shareholder resolution. Review the proxy, instructions, representative and any voting ban separately.
Your shareholder dispute team
BRANDAUER Rechtsanwälte
Dispute team for shareholders and managing directors
A shareholder dispute calls for corporate law, litigation strategy and commercial understanding from one team. Mag. Bernhard Brandauer is responsible for the legal advice; depending on the conflict, further specialised lawyers of the firm support safeguards, evidence, negotiations and court enforcement.
Contact the teamWhen a shareholder is represented at a general meeting, the proxy affects more than attendance. It may also affect the vote count, instructions and a later challenge to the resolution.
The key questions are who issued the proxy, which meeting it covers, whether it was produced in writing and whether the shareholder would have been subject to a voting ban.
GmbH voting proxy in a dispute: review the representative, instructions and voting ban
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What is the main dispute about the proxy?
All paths at a glance
Overview of all answers.
Review the voting ban of the shareholder and representative.
A proxy does not enlarge the represented shareholder’s rights. Review section 39(4) GmbHG and the specific resolution. A voting ban cannot be avoided by casting the vote through a representative.
Compare the proxy with the meeting scope
Section 39(3) GmbHG permits representation by proxy and requires the proxy to be in writing. Whether it covers one meeting, several resolutions or a longer period must follow from the document and the articles.
Also review revocation, replacement, production time and the representative’s identity. A later assertion about instructions does not itself prove what was declared at the meeting. The resolution-result guide helps structure the count.
A voting ban remains relevant when a proxy is used
Section 39(4) GmbHG excludes a shareholder from voting in certain resolutions, including a resolution on a transaction with that shareholder or on starting or settling litigation with that shareholder. The representative cannot exercise more rights than the shareholder.
Record the resolution, holding, votes cast and result both before and after excluding the disputed vote.
Preserve the resolution copy and time limit
Section 40 GmbHG concerns dispatch of the resolution copy; section 41 contains the challenge rules and time limit. Do not rely on an informal correction of the minutes after the meeting.
Preserve the notice, proxy, minutes, ballots or electronic voting data, resolution copy and dispatch evidence. The available claim depends on the established defect.
Frequently asked questions
Can a representative bypass a voting ban?
No. The proxy generally does not grant more rights than the represented shareholder has.
Must the proxy be in writing?
Section 39(3) GmbHG requires a written proxy. The articles and meeting practice must also be reviewed.
What should be done if the count is disputed?
Preserve the proxy, resolution, voting ban analysis and all votes, then recalculate the result.
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Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
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