Decision of the OLG München on resolution defects at the appellate stage
The Oberlandesgericht München (OLG München, Munich Higher Regional Court) commented, in its order of 18 May 2026 – 23 U 3938/23 – on the assertion of resolution defects in connection with a declaratory action under stock corporation law concerning the adoption of resolutions. The focus was on resolutions of a virtual general meeting, the shareholders’ right to ask questions, and the question of whether a shareholder may still intervene as a third-party intervener on the defendant’s side at the appellate stage and raise resolution defects.
According to the decision, such intervention on the defendant’s side may also still take place in appeal proceedings. The one-month limitation period for challenging resolutions under § 246 Abs. 1 AktG (German Stock Corporation Act) does not preclude the assertion of grounds for challenge by way of defence in this context.
Facts: Virtual general meeting and disabled copy-and-paste function
Shareholders challenge negative resolutions
The claimants and the third-party intervener were shareholders of the defendant stock corporation. At a virtual general meeting in March 2022, negative resolutions were adopted, which the claimants challenged by actions for avoidance. In addition, they sought a judicial declaration that positive resolutions had been adopted.
The challenge was based on the fact that shareholders had to submit their questions before the general meeting via an internet portal. In this portal, the copy-and-paste function was disabled. Prepared questions could therefore not be inserted; they had to be transferred in full manually into the input form.
No notice in the convening notice
According to the underlying facts, the convening notice contained no indication that the copy-and-paste function would not be available in the internet portal. The claimants considered this to be a relevant impairment of the shareholders’ right to ask questions.
The Landgericht (Regional Court) upheld the actions for avoidance. By contrast, it dismissed the positive declaratory actions concerning the adoption of resolutions. At the appellate stage, the only issue still in dispute between the parties was whether the requested positive declaratory findings concerning the resolutions were to be made.
Third-party intervention on the defendant’s side in appeal proceedings
Intervention by the third-party intervener
In the appeal proceedings, the third-party intervener joined the dispute on the side of the defendant stock corporation. She argued that the positive resolutions to be declared by the court were also challengeable due to the same procedural defect.
This raised the question of whether a shareholder who was not itself a claimant in the original action for avoidance may join on the defendant’s side at the appellate stage and assert resolution defects against the requested positive declaratory finding concerning the resolution.
Assertion of resolution defects by way of defence
The OLG München answered this question in the affirmative. According to the decision, the third-party intervener could raise the resolution defects by way of defence. There was no requirement in this regard to comply with the one-month period under § 246 Abs. 1 AktG.
The court based its reasoning on the fact that the relevant ground for challenge had only been established as a result of the first-instance judgment. It could therefore also be asserted for the first time in the appeal proceedings.
Assessment of the resolution defects by the OLG München
Violation of the shareholders’ right to ask questions
The OLG München held the positive declaratory actions concerning the adoption of resolutions to be unfounded. In the court’s view, the positive resolutions to be declared were just as unlawful as the negative resolutions that had already been successfully challenged.
The basis of the assessment was a relevant violation of the right to ask questions under § 131 Abs. 1 Satz 1 AktG in conjunction with § 243 Abs. 1 AktG, as well as the provisions of the COVMG (COVID-19 Measures Act) that were still relevant in the case. According to the decision, the deliberate disabling of the copy-and-paste function made it more difficult overall to ask questions.
Interference with the formation of will at the general meeting
According to the findings of the OLG München, the defendant stock corporation had deliberately disabled the copy-and-paste function in the internet portal. Since this had not already been pointed out in the convening notice, the court regarded it as an intentional interference with the formation of will at the general meeting.
According to the decision, the procedural defect did not affect only individual resolutions. Rather, it constituted a far-reaching interference with the shareholders’ participation and co-determination rights, so that all affected resolutions were tainted by a deficit in legitimacy.
Exclusion of challenges under the COVMG
No application of the exclusion in cases of intentional conduct
In the view of the OLG München, the exclusion of challenges under § 1 Abs. 7 COVMG did not apply. The decisive factor was that the defendant stock corporation had acted intentionally.
The court distinguished the case from a mere technical malfunction. The impairment of the right to ask questions was not based on a technical failure, such as an overload of the website, but on a targeted intervention in the ability to use the portal.
Distinction from the current legal position
The COVMG is no longer in force. For virtual general meetings, § 243 Abs. 3 Satz 1 Nr. 2 AktG in conjunction with § 118a Abs. 1 Satz 2 Nr. 4 AktG and § 131 AktG, among other provisions, is now relevant.
Accordingly, a challenge to resolutions of a virtual general meeting is excluded if the violation of the right to ask questions to be exercised electronically is due to a technical malfunction and the company is not at fault either intentionally or through gross negligence. In the case decided by the OLG München, the court’s assessment was that there was already no technical malfunction.
Key legal statements of the decision
The decision makes clear that a positive resolution to be declared by the court must itself not violate the law or the articles of association. If, in the context of a positive declaratory finding concerning the adoption of a resolution, a resolution is sought that suffers from the same relevant defects as a challenged negative resolution, this may preclude the declaration.
For non-claimant shareholders, the decision shows that, under the conditions addressed by the OLG München, they may intervene on the defendant’s side and assert grounds for challenge by way of defence. According to the decision, this also applies if the intervention only takes place at the appellate stage.
- The one-month period under § 246 Abs. 1 AktG did not have to be observed for the assertion by way of defence.
- § 246 Abs. 4 Satz 2 AktG did not apply according to the classification presented, because the intervention took place on the defendant’s side.
- The asserted resolution defect could be raised for the first time in the appeal proceedings.
Practical classification for general meetings
Significance of the right to ask questions in virtual formats
The decision places the shareholders’ right to ask questions in the context of virtual general meetings at the centre of its considerations. If the exercise of this right is made more difficult overall by the design of an internet portal, this may have significant consequences for the validity of the resolutions adopted.
According to the assessment of the OLG München, the disabling of the copy-and-paste function was not merely a technical framework condition. Rather, the decisive factor was that asking questions was made more difficult overall and that the shareholders were not already informed of this in the convening notice.
Relevance for declaratory actions concerning resolutions
In the case of a positive declaratory action concerning the adoption of a resolution that is combined with an action for avoidance, the decision indicates that it is not only necessary to examine whether the challenged negative resolution is defective. The positive resolution to be declared must also be free of relevant violations of the law or the articles of association.
According to the decision of the OLG München, shareholders who intervene on the defendant’s side may still raise corresponding objections in the appeal proceedings. The scope of this statement relates to the assertion by way of defence in connection with the positive declaratory action concerning the adoption of a resolution.
Frequently asked questions
OLG München 23 U 3938/23: Can a shareholder still become a third-party intervener at the appellate stage?
According to the decision of the OLG München, a shareholder may still intervene on the defendant’s side at the appellate stage. There, the shareholder may assert resolution defects against the requested positive declaratory finding concerning the resolution by way of defence.
§ 246 Abs. 1 AktG: Does the one-month period also apply to resolution defects raised through third-party intervention on the defendant’s side?
The OLG München held that the one-month period under § 246 Abs. 1 AktG did not have to be observed for the assertion by way of defence by the third-party intervener on the defendant’s side. The resolution defect could be raised for the first time in the appeal proceedings.
Disabled copy-and-paste function at a virtual general meeting: What consequences can this have for companies?
According to the decision, a deliberately disabled copy-and-paste function in the internet portal may constitute a relevant violation of the right to ask questions. This may lead to the resolutions adopted at the general meeting being challengeable if the relevant requirements are met.
Classification by MTR Legal Rechtsanwälte
The decision of the OLG München shows that procedural issues surrounding general meetings and resolution defects can be of considerable importance for stock corporations, shareholders and investors. Particularly in the case of virtual general meetings, the structuring of shareholders’ rights and the procedural enforcement of objections carry particular weight.
Where legal questions arise concerning resolution defects, actions for avoidance, declaratory actions concerning resolutions or other matters of stock corporation law, a careful examination of the individual case may be required. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on stock corporation law; further information can be found at Legal advice in stock corporation law.
