After a GmbH shareholder decision: minutes, copy and evidence

After a GmbH shareholder decision the vote is not documented merely by the spoken result. The company must record the resolutions in minutes without delay and send each shareholder a copy of the resolutions adopted stating the date on which they were entered in the minutes. These records often determine what can later be proved.

Section 40 GmbHG concerns documentation of a resolution already adopted. It does not address the notice of a general meeting, virtual attendance or the legal challenge itself. The focus here is on minutes, copies, dispatch and preservation of evidence where records are missing or participants describe the meeting differently.

Minutes and a copy serve different purposes

The minutes record the resolutions of the general meeting without delay and must be kept in an orderly manner. Every shareholder may inspect them during business hours. The copy sent by registered letter is the specific communication of the resolutions adopted.

Minutes do not automatically replace the dispatch of a copy. An informal email is also not enough if it remains unclear which version was sent. Preserve the complete wording and the date of entry in the minutes.

Which records belong in the file

For later reconstruction keep the motion, agenda, notice, attendance list, represented capital, proxies and individual votes separately. Add objections, the chair’s announcement and the final wording of the resolution.

For written resolutions preserve the declarations and proof of receipt. For electronic votes preserve exports, timestamps, system messages and the message communicating the result. The evidence checklist helps with the order. Digital traces must remain unchanged after a virtual vote.

Dispatching the copy and proving what was sent

Section 40(2) GmbHG requires dispatch by registered letter. A private dispatch note alone is not enough. Keep the posting receipt, tracking number, envelope and exact copy sent together.

Record the dispatch date, address and content. If the copy is also sent electronically preserve the complete message with headers and attachments. A later summary should not replace original records.

What to do when minutes or a copy are missing

Do not merely request “the minutes”. Identify the resolution, meeting and period. If the copy is missing request the copy of the resolutions adopted together with the date on which they were entered in the minutes.

Document the request and response. The resolution challenge check can structure missing information on subject, minutes and dispatch. It is a documentation aid and not a determination of legal merits.

Preserving evidence where accounts conflict

If participants describe the meeting differently prepare a chronology with date, time, sender, recipient and document. Separate your own observations from information received later. Keep original files unchanged and work only on copies.

For emails preserve headers and attachments. For meeting platforms preserve access logs and voting records. Screenshots can supplement the file but may not replace underlying files. A dated personal note helps distinguish memory from a later summary.

Documentation is not the same as challenging a resolution

Minutes and the resolution copy show what was documented and sent. Whether a resolution is valid challengeable or void is a separate question. That assessment may also depend on notice, participation, voting rights, majority, content and the articles of association.

The resolution challenge and nullity addresses that classification. If a voting proxy dispute or the count is disputed preserve the proxy and underlying declarations not only the minutes.

Frequently asked questions about resolution records