§ Section 46 No. 5 GmbHG stipulates that the shareholders must decide on the discharge of the managing directors without providing further details on the discharge. It is at the discretion of the shareholders to decide on the discharge. There is no entitlement of the management to a corresponding resolution or even to the discharge itself. However, if the shareholders’ meeting refuses to approve the actions of the management, the managing director concerned has the right to resign from office and an extraordinary right of termination under § 626 BGB (Carsten Schmidt in Scholz GmbH-Gesetz, 11th ed. § 46 no. 100 ff., with references from case law).
Provided there are no indications of misconduct, in practice discharges are frequently resolved with rather general formulations, such as the following:
“The annual financial statements for the financial year xy are adopted. Discharge is granted to the managing director XY/the management.”
Such a resolution does not contain any restrictions, which is why one should be aware of its scope. The entire management is approved, at least for the past financial year. The company thus waives the right to derive claims against the managing directors from their actions or omissions during this period.
According to established case law, however, in factual terms only those claims against the managing directors are covered which are based on facts which were either positively known to the shareholders’ meeting at the time of its decision or were at least recognizable to it on careful examination (BGH, judgment of April 21, 1986-II ZR 165/85, consistent case law since then). This is correct, if only because the shareholders supervise the managing directors but do not replace them. As a rule, the shareholders are not in a position to carry out comprehensive auditing measures, and such measures cannot reasonably be expected of them. Thus, unknown facts are not covered by the discharge; however, the borderline to recognizable facts is sometimes blurred. Important: For the knowledge or the recognizability it depends on all and not only individual shareholders.
It follows from this:
The shareholders must examine and evaluate all documents made available to them, if necessary with the assistance of third parties. If the management fails to expressly point out certain circumstances which indicate possible breaches of duty, but if these arise even hintingly from the documents provided, there is a high risk that the preclusive effect of the discharge resolution will also cover such claims.
However, indications of a breach of duty by the management cannot arise solely from the documents submitted. All circumstances known in connection with the exercise of the office, i.e. also verbally communicated or other visible circumstances, are decisive. Even facts which could have become known to the shareholders by exercising the statutory right to information and disclosure, provided that the management has given the shareholders sufficient opportunity to do so, are circumstances which are in any case identifiable.
Private knowledge of all shareholders is also sufficient. The shareholders must therefore also always pay attention to incidental explanations and statements made by the management at company events, etc. However, it is unclear here whether only positive knowledge or also mere recognizability is sufficient in this respect.
For practice:
The shareholders’ meeting can limit the discharge in terms of time and content from the outset, without concrete cause for example, by always limiting it to such circumstances as are positively known to the shareholders’ meeting or, for example, such circumstances as arise from minutes of shareholders’ meetings.
If there is a specific reason for doing so, partial discharges are possible and advisable (“Discharge with the exception of …” or “Discharge for period x to y”).
In case of ambiguity, applications for discharge of the management can also be deferred for the time being.
Attorney Dr. Marc Weßling