By judgment of 5 May 2026, the II. Zivilsenat des Bundesgerichtshofs (BGH, Federal Court of Justice) linked together central issues of GmbH law that have often been treated separately in previous analysis. The focus is on the legitimising effect of the list of shareholders, the proper convening of a shareholders’ meeting and the question of when consent requirements in the articles of association may become relevant in relation to third parties.
The decision concerns a litigation funding agreement between GmbHs with close corporate-law ties. The BGH set aside the appellate judgment of the Hanseatisches Oberlandesgericht Hamburg (Hanseatic Higher Regional Court of Hamburg) and remitted the matter for a new hearing and decision. According to the published information, the proceedings are pending before the OLG Hamburg under case number 1 U 148/18.
The official headnotes emphasise two core statements: A GmbH is not summoned to a shareholders’ meeting by the fact that its managing director receives the invitation of another company which he also represents. In addition, the principle that the authority to represent cannot be restricted does not apply to legal dealings with a GmbH that is controlled by a shareholder as sole shareholder and managing director.
Overview of the BGH decision of 5 May 2026
Procedural history and publication
The judgment of the Bundesgerichtshof was preceded by decisions of the Landgericht Hamburg (Regional Court of Hamburg) and the Hanseatisches Oberlandesgericht Hamburg. The appellate judgment of the 11th Civil Senate of the OLG Hamburg is dated 6 December 2024 and was published, among other places, in ZIP 2025, 438.
The BGH decided after an oral hearing on 10 March 2026 through Presiding Judge Born and Judges Wöstmann, Dr. Bernau, Dr. von Selle and Judge Dr. C. Fischer. The procedural history also lists decisions of 10 March 2026 and 8 April 2026. The judgment is not intended for BGHZ, but is intended for BGHR and the reference database.
The decision was published, among other places, in NZG 2026, 993, ZIP 2026, 1258 and 1438, MDR 2026, 789, WM 2026, 957 and DB 2026, 1406. The BGH had already decided in the same matter by judgment of 30 November 2021 – II ZR 8/21 – and had set aside and remitted the appellate judgment at that time.
Economic background to the dispute
The starting point of the dispute was a business acquisition agreement from 1999. After the purchaser ceased making payments, the claimant, R. and an asset management company as assignee jointly brought arbitration proceedings in 2010.
According to the published information, three shareholders held interests in the claimant: a GmbH with 50%, an insolvent GmbH with 40% and another likewise insolvent GmbH with 10%. The subject matter of the dispute before the BGH was a litigation funding agreement dated 21/22 February 2011.
Under that agreement, the defendant was to assume arbitration costs of up to EUR 0.7 million gross as well as expert costs of up to EUR 59,500 gross. In return, it was to receive 30% of the total proceeds from the enforcement of the claims. A professional litigation funder that had previously been approached had demanded a 35% share of the proceeds; the BGH regarded this as an indication that the agreed 30% was in line with market practice.
The funded arbitration resulted in a partial arbitral award in November 2013 for a total of EUR 16,336,303.43, of which EUR 9,093,875.63 was in favour of the claimant. This was followed by a settlement with payment obligations totalling approximately EUR 48 million to the claimant.
Consent requirements in the articles of association and authority to represent
Principle of § 37 Abs. 2 Satz 1 GmbHG
§ 37 Abs. 2 Satz 1 GmbHG (German Limited Liability Companies Act) generally protects legal transactions. Under that provision, restrictions on the authority of a managing director to represent the company do not, as a rule, have effect vis-à-vis third parties. The provision thus separates the internal management authority from the corporate organ’s authority to represent the company externally.
However, the wording itself refers to acts vis-à-vis “third parties”. Shareholders are not deemed to be third parties to the extent that intra-company measures are taken in relation to them. This includes, for example, acts that directly concern the membership relationship.
In the case of ordinary exchange transactions between the company and a shareholder, the classification was and remains disputed. According to the case law of the BGH and part of the legal literature, shareholders are not to be treated as third parties within the meaning of § 37 Abs. 2 Satz 1 GmbHG even in such transactions. This is justified on the basis that, by virtue of their membership, they are allocated to the company’s internal allocation of powers.
Another view treats the shareholder in commercial transactions in principle as a third party. According to this view, not every internal restriction should automatically have external effect. Instead, cases in which protection is not warranted should be dealt with under the principles of abuse of authority to represent, in particular where the shareholder knew of the excess of authority or it should have been obvious to the shareholder.
Legal dealings with a controlled GmbH
Until now, it has been particularly disputed how indirect shareholders and affiliated companies are to be treated. According to a widespread view, in relation to the GmbH they are, in principle, third parties within the meaning of § 37 Abs. 2 Satz 1 GmbHG. Under that view, the separate legal personality of the individual companies should not be set aside solely because of intra-group interconnections.
The BGH has now expressly held that the principle that the authority to represent cannot be restricted does not apply to legal dealings with a GmbH that is controlled by a shareholder as sole shareholder and managing director. In this close control scenario, the Senate does not treat the legally independent contracting party as an outside third party worthy of protection.
The decision therefore goes beyond the previous treatment of direct shareholders. In the BGH’s view, the formal distinction between the legal entities is not sufficient in this scenario to open up the protection of § 37 Abs. 2 GmbHG. The interposed legal person then does not provide any independent protection of legitimate reliance.
No general statement for all affiliated companies
The scope of this exception cannot be conclusively inferred from the decision. The official headnote expressly refers to a GmbH that is controlled by a shareholder as sole shareholder and managing director. It does not automatically follow that this can be extended to all affiliated companies.
In particular, it remains open whether the principles may also apply in cases of majority shareholdings, control agreements, sister companies or companies that are merely controlled de facto. An argument in favour of extension could be that possibilities of information and influence may also exist in those cases. However, legal certainty and the principle of separate legal personality argue against a broad extension.
A sustainable development of the law is therefore likely to be considered only in cases in which corporate-law control and personal interconnection justify a comparable allocation to the shareholder sphere. The BGH left open whether, and under what conditions, lesser shareholdings or relationships of proximity suffice; in any event, according to the headnote, an unexamined transfer to all affiliated companies is not justified.
From defective notice to pending invalidity
List of shareholders as the decisive basis
The decision links formal shareholder legitimacy with the validity of the subsequent contract. Under § 16 Abs. 1 Satz 1 GmbHG, in relation to the company, the person entered in the list of shareholders included in the commercial register is deemed to be a shareholder. Beneficial ownership and formal legitimacy may therefore diverge.
The person materially entitled can generally not exercise membership rights vis-à-vis the company as long as that person is not entered in the list of shareholders. Conversely, the shareholder entered in the list is deemed to be a shareholder vis-à-vis the company even if that person is not, or is no longer, materially entitled to the share.
This legitimising effect serves clarity within the company. The company should not have to clarify on an ongoing basis whether a transfer of shares was materially effective, whether conditions have occurred or whether consents were in place. In the event of changes, the managing director may have a duty under § 40 Abs. 1 GmbHG to submit a new list; in the case of share assignments, the notary is involved in maintaining the list under § 40 Abs. 2 GmbHG.
The time of the invitation is decisive
For the invitation to the shareholders’ meeting, what matters is the list of shareholders included in the commercial register at the time of the invitation. It is not decisive who is entered on the day of the shareholders’ meeting. When convening the meeting, management must be able to determine towards whom notice obligations must be fulfilled.
In the facts decided, the S. GmbH, which had not been invited, was entered in the claimant’s list of shareholders in place of HI. GmbH only in the period from 2 September 2010 to 5 January 2011. The invitation to the shareholders’ meeting on 5 January 2011 was dated 8 December 2010. The S. GmbH was merely sent the expanded agenda by registered mail dated 22 December 2010.
The fact that the shareholder actually invited was entered in the list of shareholders at the time the resolution was adopted did not, according to the decision, cure the notice defect. A subsequent change to the list cannot, in principle, retroactively cure a defective convening.
No notice via the managing director of another company
The BGH clarifies that notice to a company is not effected by the fact that its managing director receives the invitation of another company which he also represents. The addressee of the invitation is the respective shareholder as legal entity. The natural person of the managing director does not replace this allocation.
This also applies where several companies are represented by the same person. The separate legal personality of the companies remains in place. An invitation addressed to one company is therefore not at the same time to be understood as an invitation to another company.
Notice does not merely serve an informational function. It allocates knowledge to a specific membership right and enables the respective shareholder to decide on participation, representation and the exercise of its rights. Particularly where multiple roles are involved, interests, instructions, confidentiality duties or consent requirements may differ from one another.
Nullity of the consent resolution
According to the settled case law of the BGH, the complete failure to invite a shareholder who is to be invited results, by analogy with § 241 Nr. 1 AktG (German Stock Corporation Act), in the nullity of the resolutions adopted at the meeting. This does not depend on whether the vote of the shareholder who was not invited would have been mathematically decisive. Nor is it decisive whether the shareholder would in fact have attended if properly invited.
The strict legal consequence is based on the fact that the failure to give notice completely excludes the right to participate in the decision-making process. The shareholders’ meeting serves not only to cast votes. It also includes information, discussion, the submission of motions and the opportunity to influence other shareholders.
According to the findings to date, the notice defect led to the nullity of the resolution of 5 January 2011. This resolution was intended to authorise management to enter into the litigation funding agreement. Since, under the articles of association, the conclusion of the contract required a valid consent resolution and the defendant in the scenario decided was not protected by § 37 Abs. 2 GmbHG, this resulted in the pending invalidity of the litigation funding agreement under the principles of §§ 177 ff. BGB (German Civil Code).
Further disputed points of the appellate judgment
Extension of the claim and payment issues
In the appeal proceedings, the claimant had extended its action by adding an application for declaratory relief and an application for repayment of payments already made in the amount of EUR 4,458,599.87. Beyond claims already fulfilled in the amount of EUR 5,873,896.55, the OLG had not awarded the defendant any further payment claims.
The BGH set aside the appellate judgment both on the defendant’s appeal on points of law and on the claimant’s cross-appeal on points of law. The matter was remitted to the OLG Hamburg for a new hearing and decision. The final assessment of individual open points is therefore reserved for the further proceedings.
Fiduciary duty and subsequent contract adjustment
The BGH also criticised the second line of reasoning in the appellate judgment. The OLG had based a subsequent contract adjustment on the shareholders’ fiduciary duty, according to which the participation in proceeds was to lapse after the first partial success.
The BGH did not consider this reasoning justified. The defendant shareholder-creditor is equivalent to a third party as a third-party creditor. In addition, the participation in proceeds had been found by the trial court to be in line with market practice; the litigation funder previously approached had also demanded a higher participation of 35%.
Practical significance for companies and transactions
Convening and list of shareholders
The decision shows that defects in convening a meeting can have significant consequential effects. An error in giving notice that initially appears internal can, through the nullity of a consent resolution, affect the validity of a subsequent contract.
For the corporate-law treatment of the shareholders’ meeting, the following points in particular should be emphasised:
- The decisive list is the list of shareholders included in the commercial register at the time of the invitation.
- Each legally independent shareholder must be invited in its own legal position.
- The knowledge of a managing director does not replace the invitation addressed to the specific legal entity.
- Subsequent changes to the list of shareholders do not, in principle, eliminate a notice defect that has already arisen.
Scope of internal consent requirements
The limitation of § 37 Abs. 2 GmbHG in particularly close control scenarios is newly emphasised. Internal restrictions on management authority may then acquire direct significance for the authority to represent externally. In this scenario, according to the BGH decision, no additional examination is required as to whether the contracting party knew of the excess of authority or whether it was evident.
Rather, the decisive question is whether the contracting party is at all to be allocated to the legal transactions protected by § 37 Abs. 2 GmbHG. The BGH denies this at least where a GmbH is controlled by a shareholder simultaneously as sole shareholder and managing director. The legal independence of the contracting party alone is not sufficient for this purpose.
The decision is therefore of particular importance for legal transactions within close participation structures. However, it does not conclusively answer how indirect shareholders, sister companies, majority shareholdings or de facto control relationships are generally to be treated.
Frequently asked questions
BGH II ZR 2/25: When is notice to a GmbH of a shareholders’ meeting effective?
According to the BGH, the respective shareholder must be invited as a legal entity. Notice to another company that has the same managing director is not sufficient.
§ 37 Abs. 2 GmbHG: Does the non-restrictable authority to represent also apply in the case of a GmbH controlled by the shareholder?
The BGH denies this at least for the case in which the contracting party is a GmbH that is controlled by a shareholder as sole shareholder and managing director. The decision does not contain any conclusive general statement for other forms of affiliated companies.
What practical consequences does BGH II ZR 2/25 have for companies in contracts with affiliated GmbHs?
The decision may mean that internal consent requirements become relevant to the validity of a contract in close control scenarios. In addition, a defect in giving notice of a shareholders’ meeting may, through a void consent resolution, lead to the pending invalidity of a subsequent contract.
Corporate-law assessment by MTR Legal
The judgment of the BGH illustrates how closely formal shareholder legitimacy, resolution procedures and authority to represent may be linked in GmbH law. Especially in contracts within intertwined corporate groups, the distinction between the internal allocation of powers and external effect can acquire considerable economic significance. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on issues relating to shareholder resolutions, authority to represent and participation structures; further information can be found at legal advice in corporate law.
