Organs : chapter 7
| Author | Christoph Jaehne |
| Published date | 01 January 2008 |
| Date | 01 January 2008 |
| Pages | 118-122 |
| DOI | 10.10520/EJC74088 |
118
CHAPTER 7
ORGANS
7.1 Introduction
Given the fact that both business entities are juristic persons they
need organs to act for them. It will be interesting to see if differences
between a more formally structured GmbH as a ‘Kapitalgesellschaft’
and the very closely held organizational form of the close corporation
exist. Whether, e.g., members have the opportunity to actively take
part in the business of the corporation because of equal management
rights or if the organ of a managing director is being prescribed.
7.2 GmbH
7.2.1 Managing director
The GmbH must have at least one managing director, which can be
a non-member.1 The members are, however, free to appoint more than
one managing director.
7.2.1.1 Personal qualifications
Nobody who has been convicted of particular criminal insolvency of-
fences for a period of five years may become a managing director,2
and persons prohibited by court judgement or administrative order
from practising a specific profession or trade are not allowed to be-
come managing director of a GmbH, which is partially or totally in-
volved in the same profession or trade during the period for which
the prohibition lasts.3 It is, however, also possible to appoint foreign-
ers, even those living abroad, as long as they are able to enter Ger-
many legally at all times.4
7.2.1.2 Appointment and legal position
The appointment of a managing director can take place either in the
articles or through a resolution at a shareholders’ meeting.5
An appointment may be revoked at any time. This revocation may be
restricted by the articles to a reason, e.g., important causes, as a
1 §6 (1), (3) 1st sentence GmbHG.
2 The same applies in case of a judgement of a foreign criminal court co-
vering similar criminal behaviour, OLG Naumburg, 2000, ZIP 622, 624.
3 §6 (2) 2nd and 3rd sentence GmbHG.
4 OLG Köln, 1999, DB 38.
5 §6 (3) 2nd sentence, §46 no. 5 GmbHG, as well as through another
institution mentioned in the articles of association, e.g., a supervisory
board (interpretation derived from §45 GmbHG).
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