If management ignores a request to convene a meeting, a qualified minority may be entitled to call the general meeting itself.
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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 teamIf management refuses to convene a necessary general meeting, the shareholder minority is not blocked indefinitely. Section 37 of the Austrian Limited Liability Companies Act gives qualified shareholders their own right to convene a meeting. The relevant points are the participation threshold, a written request stating its purpose, expiry of the statutory response period and a formally correct notice.
This check considers participation, the written request and management's response. It does not replace a review of the articles of association and the proposed notice.
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Before sending notice, review the articles, the bodies authorised to convene, the start of the response period and every requirement under section 38 GmbHG. The notice must explain the failure to act and state the agenda precisely.
Document the request, receipt and every response. A premature or formally defective notice can make later resolutions vulnerable to challenge. Review the response period and management's reaction before sending your own notice.
The request should be in writing, addressed to the competent body and identify a specific purpose. State the requested agenda items precisely enough to permit effective discussion and resolutions.
Coordinate the purpose, agenda and service with the other shareholders. Each participant should document support for the request. Only then should the requirements of section 37 GmbHG be assessed.
Without the statutory or a lower contractual threshold, you cannot call the general meeting solely on this basis. Review individual information rights, any special rights in the articles and available court protection instead.
Under section 37(1) GmbHG, shareholders may demand that a meeting be convened without delay if their contributions together represent at least one tenth of the share capital. The articles may set a lower threshold. The decisive factors are therefore the subscribed contributions and the actual articles, not an informal balance of influence.
The request must be made in writing and state its purpose. A general demand that management finally hold a meeting creates avoidable risk. The agenda should identify concrete matters, such as removing a managing director, appointing new management, reviewing specified payments or resolving to take court action. Both content and receipt should remain provable.
If the bodies authorised to convene do not comply within fourteen days after the request, or if no such body exists, section 37(2) GmbHG allows the entitled shareholders to convene the meeting themselves. They must explain the circumstances. Before sending notice, confirm when the request was received and whether management's response actually amounts to compliance.
A statement that the matter will be considered later does not necessarily satisfy the request. Conversely, the minority should not disregard a proper notice issued by management. The purpose is an effective resolution, not a race between competing invitations. The general meeting decides whether the company bears the costs of the minority notice.
Calling the meeting yourselves does not displace section 38 GmbHG. The notice must first follow the method required by the articles. If the articles are silent, the statute requires notice to each shareholder by registered letter. As a rule, at least seven days must lie between the last publication or posting of the letter and the meeting date.
The purpose and agenda must be stated as precisely as possible. If an amendment to the articles is intended, its essential content must be announced. The venue, start time, participation arrangements, representation and proposed resolutions should also be unambiguous. Formal defects can expose the resolutions to challenge and deepen the dispute.
In decision 6 Ob 14/88 of 16 June 1988, the Austrian Supreme Court held that a valid notice by the minority does not lose effect merely because the managing directors subsequently convene another general meeting. Legal principle RS0087577 therefore protects the statutory minority right against a notice sent only afterwards.
Both notices and agendas still require careful comparison. Different dates, proposed resolutions or formal defects may create new grounds for challenge. A coordinated approach is often preferable to two competing meetings, provided that no urgent right or protective objective is lost.
The key documents include the articles, current shareholder list, commercial register extract, evidence of subscribed contributions, signed convening request, proof of service, management responses, draft notice, agenda and proposed resolutions. If disputed payments or breaches of duty are involved, add the relevant records, contracts and correspondence.
The sequence matters. First confirm the threshold and the right to demand a meeting. Next assess the response period and any reaction. Only then should the notice be completed under the contractual and statutory formalities. This keeps the meeting focused on its actual purpose and avoids an additional dispute caused only by preventable defects.
Section 37 GmbHG refers to contributions representing at least one tenth of the share capital. The articles may provide a lower threshold. The participation and articles must therefore be reviewed in the specific case.
As a rule, no. The right to convene the meeting yourselves requires noncompliance within the statutory period or the absence of an authorised body. The start of the period and any response require individual review.
There is no general answer. Section 38(4) GmbHG sets special conditions for a meeting that was not properly convened. Questions of challenge may also arise. The notice and proposed resolutions should therefore be reviewed beforehand.
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