The exclusion of a lawyer from a partnership is void if the resolution to exclude him was made at a shareholders’ meeting convened by an unauthorized person.
In a partnership, only the person authorized under the partnership agreement can effectively convene a general meeting. If another partner calls the general meeting, the decision to exclude a partner from the company is void, even if the decision was otherwise made in accordance with the regulations. This is the result of a fundamental decision by the Federal Court of Justice.
Lawyers founded Part mbB under the Partnership Act
In this specific case, three lawyers in Frankfurt am Main joined forces in 2007 to form a partnership with limited professional liability (Part mbB) under the Partnership Act. Two additional partners were subsequently admitted.
The founding agreement provided for the convening of the partners’ meeting by the managing partner
The founding agreement of Part mbB stipulated that the partners’ meeting would be convened by the managing partner. One of the founding partners called an extraordinary shareholders’ meeting in 2020. The agenda item was the immediate exclusion of one of the founding partners from the company. The exclusion was decided in accordance with the provisions of the partnership agreement in the absence of the lawyer to be excluded.
Lawyer sued against his exclusion from the partnership
The excluded lawyer initially appealed against the dismissal in two instances, but was unsuccessful. The lower courts did not investigate the claim, which was disputed between the parties, that the Managing Partner had duly called the meeting. They considered the exclusion of the plaintiff to be effective in any case due to significant reasons.
Loading by an unauthorized person is a “non-loading”
The BGH saw this differently. According to the BGH’s decision, a summons to a shareholders’ meeting by an unauthorized person is equivalent to a “non-summons” and does not have to be observed by the invited shareholders. A summons to a shareholders’ meeting by a person authorized to do so by the shareholders’ agreement is essential for holding a shareholders’ meetingIt serves to safeguard the fundamental right of every shareholder to participate in the meeting and to influence the decision-making process of the company through their participation (BGH, judgment of January 17, 2023, II ZR 76/21). A violation of this principle leads to the invalidity of the resolutions passed at the meeting (BGH, judgment of May 13, 2014, II ZR 250/12).
In the case of purely formal cargo violations, the severity is important
The Senate clarified that according to the Partnership Law Modernization Act of 2021 Violations of form, deadline and content the convening of a shareholders’ meeting can only lead to the nullity of the resolutions passed there if the purpose of the statutory convening provisions would otherwise be frustrated. This statutory provision is intended to enable the shareholders to prepare properly for the agenda items of a meeting. Only if this Disposition protection If this is violated, the defect in the summons is so serious that no effective resolutions can be taken in the meeting.
Summons by an unauthorized person is not a mere formal defect
According to the decision of the Federal Court of Justice, these provisions concerning the formal invitation formalities cannot be applied to cases in which the invitation to the shareholders’ meeting is sent by an unauthorized person. The invitation by an unauthorized person is not a mere formal defect in the invitation as such; rather, an unauthorized person cannot effectively convene a shareholders’ meeting in the first place. The invitation by an unauthorized person is virtually non-existent (BGH, judgment of January 9, 2024, II ZR 220/22).
The principle of summons by an authorized person applies across all corporate forms
The Senate also pointed out that the requirement of summons by an authorized person applies to all corporate forms, both to capital companies such as AG and GmbH and to partnerships. This principle also applies regardless of whether the company has a few members or is a larger company, Sections 241 No. 1 and 121 Paragraph 2 AktG.
Who is the Managing Partner must be clarified
The lower courts should therefore not have left open the question of whether the shareholders’ meeting was called by the managing partner who was authorized to do so under the partnership agreement and should have investigated this issue, which was disputed between the parties. Should it emerge in the further proceedings that a managing partner is missing, the lower court should have made a decision pursuant to Sections 133 and 157 of the German Civil Code. Interpretation of the partnership agreement to determine who, if applicable, was allowed to convene the partners’ meeting (BGH, judgment of 22 September 2020, II ZR 141/19).
Lower court must decide again
With this argument, the Federal Court of Justice referred the case back to the Higher Regional Court for further clarification and decision.
(BGH, judgment of 16 July 2024, II ZR 100/23)
