1. The procedure for passing resolutions in partnerships
In contrast to corporation law, there are no legal procedural or formal requirements for partnerships that specify the process and framework conditions for the passing of shareholder resolutions.
This is due to the assumption of the law that unanimous opinion formation, which is provided for by law, does not require procedural rules.
It is precisely against this background that the articles of association of a partnership should/must usually contain detailed provisions for the procedure of general meetings and shareholder resolutions.
These include, in particular, regulations on the summons and their deadline, the quorum, the meeting place, the minutes and the admissibility of resolutions outside of meetings (circulation procedures, telephone conferences, etc.).
The articles of association must find a balance between flexibility and protection of the shareholders from inappropriate decisions. This means that informal amicable decisions should be possible, but at the same time the interests of the (minority) shareholders must be protected. This can be guaranteed by arranging a quorum and by setting appropriate notice periods. There must be no tacit decision-making through actual practice to protect shareholders from being taken by surprise.
2. The unanimity principle and majority principle for shareholder resolutions in partnerships
In accordance with the statutory provisions, all shareholders, including the limited partners, are entitled and obliged to cast their votes and participate in the passing of resolutions. An abstention is counted as an active vote. A transfer of voting rights to another co-partner or a third person is excluded, so that a personal vote is the only permissible way.
Dispositive statutory law provides for the unanimity requirement for all shareholder resolutions. According to § 709 BGB, § 119 paragraph 1 HGB, this refers to all votes of the shareholders by head (not only to the votes cast).
The shareholder who is subject to a conflict of interest between his personal interest and the interest of the company may not vote. This voting ban does not apply to fundamental decisions about the internal order of the company.
Majority decisions for the company can be permitted by articles of incorporation. In order to protect the minority shareholders, however, the instruments of the principle of certainty and the core area theory developed by case law must be taken into account, since a violation of these can lead to the ineffectiveness of this regulation in the articles of association.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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