Key Points at a Glance
- Shareholders may leave a German limited liability company (GmbH) if there is good cause, if a corresponding agreement is reached, or if the articles of association provide for a right of withdrawal.
- If the shares are transferred to third parties, the company, or other shareholders, notarisation is required.
- If the shares are redeemed, notarisation is not required.
When Can a GmbH Shareholder Resign?
A shareholder may withdraw from a German limited liability company (GmbH) if the articles of association provide for a withdrawal right, if the shareholder and the company conclude a corresponding agreement, or if there is good cause that justifies the withdrawal:
- Extraordinary right of withdrawal: A shareholder may withdraw from the company if there is good cause making it unreasonable to require the shareholder to remain in the company. This requires that the shareholder’s interest cannot be transferred, for example because the shareholders’ meeting must approve the transfer but refuses to do so. Good cause may exist, for instance, where the relationship of trust between the shareholders has been irreparably damaged due to long-standing conflict.
- Ordinary right of withdrawal: If the articles of association provide for a withdrawal right that does not require good cause, an ordinary withdrawal is permissible.
- Agreement: A shareholder may also withdraw without difficulty if the company and the shareholder enter into a withdrawal agreement.
Withdrawal from a company takes place in two steps: first, the shareholder declares the withdrawal; in a second step, the shares are either redeemed or transferred.
Is a Notary Required for the Withdrawal of a GmbH Shareholder?
Whether a notary is required for a shareholder’s withdrawal from a GmbH depends on how the withdrawal is structured. The following aspects of a shareholder’s withdrawal require notarial certification or notarisation:
- Assignment Agreement: If it is agreed that the shares are to be transferred to third parties or co-shareholders, this agreement obliges the shareholder to assign their shares. Under Section 15 (4) GmbHG, the obligation to assign a GmbH share must be notarised. An exception applies if the obligation to assign is already stipulated in the articles of association. A shareholders’ resolution that only determines to whom the shares are transferred does not require notarisation, provided the obligation to transfer the shares is already regulated in the articles.
- Transfer of Shares: The assignment of GmbH shares to other shareholders or third parties always requires notarisation under Section 15 (3) GmbHG.
- Amendments to the Articles of Association: If the articles are to be amended—such as to include an assignment obligation—the corresponding amendment also requires notarisation pursuant to Section 53 (3) GmbHG.
Notarial involvement is not required if the shares are to be redeemed. Neither the withdrawal declaration nor the shareholders’ resolution on the redemption of shares requires notarial participation. As part of the redemption process, a new shareholder list is generally prepared and submitted to the commercial register. The notary is only responsible for filing this list if they were involved in the redemption process (Section 40 (2) GmbHG). As notarial involvement is not foreseen for redemptions, it is only relevant if notarisation is mandated by the articles or if the shareholders voluntarily opt for a notarised resolution.
Voluntary notarisation may be advantageous, as notarial deeds offer increased evidentiary value. Additionally, notaries act neutrally and independently, providing enhanced legal oversight and preventing potential disputes.
How high are the notarial fees?
Notarial fees are prescribed by law and depend on the transaction value and the specific nature of the transaction:
- Obligation or transfer of shares: Both agreements are typically notarised together, triggering a single “2.0 fee”. As a result, notarial costs amount to approximately 0.5% to 2% of the transaction value.
The transaction value corresponds to the value of the shares to be transferred. The higher the transaction value, the lower the proportional fees. - Amendment to the articles of association: An amendment to the articles of association also incurs a fee. The transaction value for such an amendment is 1% of the company’s share capital, with a statutory minimum of €30,000.
Consequently, the notarial fees for an amendment to the articles of association typically range between €350 and €600.
