A written shareholder decision requires a traceable form, consent, proposal and vote record.
Your shareholder dispute team
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 teamA resolution without a meeting can be practical, but in a dispute it quickly becomes an evidence issue. The first question is whether all shareholders consented to the written procedure and whether the articles impose additional requirements.
Separate consent to the voting route, the proposal, the version circulated, the votes cast and the announcement of the result. These stages should not collapse into one message chain.
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Assign each statement about the written procedure to a person and a time. Section 34 GmbHG must be read together with the articles. Only then can the substantive vote be assessed reliably.
Compare the motion, attachments, amendments and final resolution wording. Record which version was available to all shareholders and what was actually put to a vote.
Record each vote, authority to represent, possible voting exclusions and the majority calculation. Link the result to the operative version and record how it was announced.
Section 34 GmbHG concerns resolutions adopted without a meeting. The first step is therefore to establish whether all shareholders accepted this voting route. Consent to the procedure is separate from later approval or rejection of the proposal.
Review the articles, emails and other statements in chronological order. A statement confirming receipt of a proposal does not automatically answer whether the written procedure itself was accepted. The resolution challenge and nullity overview places these issues in context.
A clear proposal identifies the subject and the decision sought. Attachments, alternatives and later amendments must be tied to the same review. Message chains without a defined proposal make it difficult to prove what was actually put to a vote.
Preserve every circulated version with sender, recipient and time. If wording changes, the record should show which version formed the basis for the votes. The guidance on resolution records and evidence explains how to keep the relevant documents together.
Assign each declaration to a shareholder, a time and the represented interest. For proxies, check whether the authority covers the specific subject of the vote. If a shareholder is personally concerned, possible exclusions under section 39(4) GmbHG require separate review.
The result should record yes, no and abstention votes rather than merely saying “carried”. If a proxy is disputed, the guidance on a voting proxy in a GmbH resolution dispute helps separate the authority issue from the counting issue.
The operative version, valid votes and announced result must match. Preserve the announcement and the documents relating to the resolution copy. Section 40 GmbHG concerns documentation and transmission of adopted resolutions and is distinct from the prior consent required for the written procedure under section 34.
If the result is about to be implemented, preserve the sequence of events. The guidance on challenging a shareholder resolution explains which records matter for the further review of announcement and remedy.
A lack of consent to the written procedure is different from an unlawful subject matter. For both questions, preserve the wording, articles, voting records and concrete effects.
Section 41 GmbHG can attach separate consequences to resolution defects. Identify the alleged defect, when the result became known and which remedy fits the facts. The guidance on defective notice of a general meeting concerns a different procedure and should not be merged with a written vote.
That depends on whether it clearly shows consent to the voting route, the proposal and the vote, and whether the articles impose additional requirements. One message does not replace a review of the full procedure.
Silence should not be treated as consent without a clear legal or contractual basis. The key issue is whether consent to the written procedure was expressed in a traceable way.
Preserve the proposal, attachments, amendments, each vote, the operative final wording and the announcement of the result. The chronology helps establish the subject that was actually considered.
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