Internal consent under section 21 GmbHG: joint management and individual action

Section 21 GmbHG governs how several managing directors take management measures internally within a GmbH. Unless the articles provide otherwise, the starting point is joint management: one managing director may not take a management action alone.

Section 21 GmbHG also contains a rule for individual management. If the articles authorise each managing director to act alone, an objection by one of the other managing directors generally prevents the planned action. The articles can modify both statutory starting points. The wording of the articles, the specific action and the sequence of events therefore come first in every review.

Section 21 GmbHG: the joint-management rule

Where several managing directors are in office, section 21(1) GmbHG generally prevents one of them from taking a management action alone. The provision starts from joint internal decision-making by the management body. Each managing director must therefore be able to participate in the internal decision unless the articles establish a different rule.

The rule concerns actions that belong to management. The review should begin by identifying the precise measure. A general reference to the office of managing director does not answer whether the action falls within section 21 GmbHG. Describe the transaction, its subject, timing and intended consequence in a short record.

For a planned payment, contract decision or other management measure, the managing directors should review the relevant documents together and record the result. If it remains unclear whether the articles create individual authority, that uncertainty should be resolved before the action is taken.

The articles are the starting point for the review

Section 21(1) GmbHG expressly permits a different provision in the articles. The articles may retain joint management, authorise individual management or add rules for specific situations. The exact wording and its context are decisive.

Read the provision together with its amendments and related clauses. Review the number of managing directors, the wording of the authority, any consent reservations and any rule dealing with an objection. A long-standing practice may be informative, but it does not replace interpretation of the current articles.

For the review, gather the current articles, amendments and documents relating to the planned action. The internal consent issue concerns management of the company. The article on an orderly GmbH director change and handover deals with a different focus.

Individual management and an objection by a colleague

Under section 21(2) GmbHG, the articles may authorise each managing director to manage the company independently. That provision changes the starting point: one person may generally take the management measure alone. The scope of that authority depends on the articles.

If another managing director objects to the action, section 21(2) GmbHG generally requires the action to be withheld. The articles may provide a different consequence for this situation. The objection should therefore be connected to the specific measure. A general refusal to cooperate and a subject-specific objection raise different questions.

Preserve the proposed wording, the time of the objection, how it was communicated and any response. This makes it possible to identify the action concerned and to determine whether the articles provide a different rule. A managing director resignation is a separate event and should be assessed separately.

Classify danger in delay as a narrow exception

For joint management, section 21(1) GmbHG permits one managing director to act alone where there is danger in delay. The exception presupposes a concrete situation in which waiting for a joint decision could cause a threatened consequence. It is not a general release for quick or commercially sensible decisions.

Timing, threatened consequence and measure must be assessed together. Ask what event was imminent, why the other managing directors could not be consulted in time and how the measure was limited to preventing that danger. The further the action goes beyond what was urgent, the harder it becomes to rely on the exception.

A short emergency chronology improves the review. It should record the starting position, available information, attempts to make contact, the time pressure and the action taken. After the urgent measure, the managing directors should inform one another promptly and record the next joint decision.

Review a disputed action under section 21 GmbHG

In a dispute, start with the action itself. Prepare a precise description of the counterparty, subject, value, timing and intended legal consequence. Then compare the relevant article provision with the statutory starting point in section 21 GmbHG.

For joint management, record the joint consent. For individual management, examine whether another managing director objected and what consequence the articles attach to that objection. For danger in delay, explain why waiting was impossible and connect the action to that specific danger. These review levels should remain separate in the file.

The relevant documents include the articles and amendments, the precise description of the action, emails or minutes recording consent, any objection and a chronology prepared at the time. This makes the internal decision-making process traceable while keeping other legal questions outside the section 21 consent analysis. Further legal updates are available through BRANDaktuelle legal updates.

Frequently asked questions about section 21 GmbHG