In a virtual shareholders meeting, the articles, technical access and genuine participation determine whether a disputed vote can be defended.
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Dispute team for shareholders and managing directors
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 teamA virtual shareholders meeting is not legally secure merely because all participants receive a video link. In a dispute, the decisive chain is the articles, the notice, the technical design, identity checks and a traceable count of the votes.
The VirtGesG permits virtual and hybrid meetings only within its statutory framework. For a disputed vote, every shareholder must be able to exercise their rights in practice. This includes speaking, taking part in every vote and, where appropriate, raising an objection.
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Secure the current articles, any amendments and the notice. Under section 1 VirtGesG, the articles must provide for the virtual or hybrid format, or give the calling body authority to choose it. The participants’ general agreement does not automatically replace this review.
Record the time, duration and effect of every disruption. Under sections 2 and 3 VirtGesG, the required communication options must work in real time. The key issue is not every minor inconvenience, but whether a shareholder was excluded from speaking, voting or raising an objection at the relevant moment.
Separate identity checks, proxy evidence, possible voting exclusions and voting weight. The virtual format does not change the corporate requirements for a valid vote. Secure the announcement and consider whether the resolution should be challenged under section 41 GmbH Act.
Section 1(2) VirtGesG does not make a virtual meeting available automatically for every GmbH. The articles may provide for meetings without physical attendance. They may also state that the virtual format is mandatory or leave the choice between permitted formats to the calling body.
The version in force when the meeting was called must therefore be secured. Amendments, transitional rules and special rights may affect who decides the format. A practice of holding earlier video conferences is not a substitute for a clear legal basis.
The review of a defective notice remains relevant. The virtual format may be permitted while the purpose, agenda or delivery of the specific notice is still defective.
A simple virtual meeting under section 2 VirtGesG requires a real-time two-way audio and visual connection. Each shareholder must be able to speak, participate in every vote and, where appropriate, raise an objection. A one-way livestream followed by an email vote does not meet that standard.
A moderated virtual meeting under section 3 VirtGesG also requires real-time audio and visual transmission. Shareholders may request to speak electronically, and once given the floor they must have a video communication facility. Voting rights must be exercisable electronically at every vote.
In a hybrid meeting, each participant may choose physical or virtual attendance. Section 4 VirtGesG requires equal treatment of both groups. A hybrid format therefore does not reduce the requirements applicable to the virtual participants.
Section 2(2) VirtGesG requires the notice to state the organisational and technical requirements for participation. The information should cover platform access, necessary equipment, speaking requests and the electronic voting method. A shareholder must be able to prepare for participation from the notice itself.
A notice containing only a link and a time leaves important questions unanswered. Who moderates? How can a motion be submitted? How is an objection recorded? What replacement route is available if the connection fails? The closer the vote is to a critical majority decision, the more precise the procedure should be.
Under section 2(4) VirtGesG, the company is responsible for communication technology only to the extent that it falls within the company’s sphere. A private connection problem must therefore be distinguished from an unavailable platform, a missing voting function or an interruption caused by the organiser.
In a shareholder dispute, it is not enough to describe the formal process as orderly after the event. For each disputed vote, review whether the shareholder could hear the motion, respond, vote and raise an objection. This applies even if the vote is later said not to have affected the arithmetic result. A vote must also not place individual shareholders at an unequal burden without an objective reason. The article on minority protection in capital measures explains the separate issues that arise in that context.
Record interruptions with their time, affected participants and specific consequence. If the vote was repeated, record the relationship between the first and second vote. A later summary of the result without technical and chronological evidence makes reconstruction difficult.
The article on a wrongly determined resolution result explains the narrow role of a positive judicial determination. The virtual format adds an evidentiary layer, but does not replace the exact vote count or the review of the correct remedy.
If there is reason to doubt a participant’s identity, section 2(3) VirtGesG requires the company to verify it by suitable means. A user name alone does not necessarily establish who is attending. The method should fit the importance of the vote without making participation unnecessarily difficult.
Virtual access does not change the rules on representation and proxy authority. Section 39(3) GmbH Act requires a written proxy. Its scope, any revocation and the identity of the representative belong in the voting file. The article on a voting proxy in a GmbH dispute addresses these questions in detail.
A possible voting exclusion must be assessed separately. A person may technically attend and still be unable to vote on a particular resolution. The matrix should therefore show the shareholder, participation, representation, voting exclusion, vote cast and the chair’s assessment side by side.
The minutes should not merely state the final result. They should record the motion, participants, proxies, speaking requests, technical interruptions, objections, individual votes and the wording of the announcement. For a hybrid meeting, also record how physical and virtual participants were treated equally.
Anyone raising an issue should identify it clearly during the meeting and request that it be included in the minutes. This does not guarantee a later remedy, but it creates a stronger basis for review. After the meeting, secure the resolution copy, proof of dispatch, platform records and contemporaneous correspondence.
Section 41 GmbH Act contains specific requirements and time limits for challenges. Whether the correct response is a challenge, nullity claim, positive judicial determination or interim measure depends on the defect. The resolution challenge check helps organise the subject, participants, voting process and risk of implementation.
The file should contain the articles, company register extract, notice, agenda, motions, participant list and proxies in one chronology. Add the technical access information, voting route and a contact route for interruptions. This makes it possible to identify procedural weaknesses before the meeting starts.
Prepare a vote matrix for the meeting. It should show the shareholder, share contribution, permitted representation, possible voting exclusion, vote cast and the chair’s announced result. Where the majority is narrow, calculate how the disputed vote would change the outcome.
After the meeting, preserve the records in their original context. This includes platform logs, chat messages, voting data, emails, screenshots and dispatch of the resolution copy. Digital records should be ordered by creation and access time rather than replaced by later summaries. New legal updates are available through BRANDaktuelle Rechtsnews.
Section 1(2) VirtGesG generally requires a basis in the articles. The articles may provide for a virtual or hybrid meeting or give the calling body authority to choose the format. The applicable articles and notice must be reviewed.
No, not for a simple virtual meeting under section 2 VirtGesG. There must be a real-time two-way audio and visual connection. Each shareholder must be able to speak, vote and, where appropriate, raise an objection.
Record the time, affected person, duration and effect on speaking, voting or objections. Then assess whether a repeat vote, replacement route or corporate remedy is required.
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