Bangen:Öffnungsklauseln in GmbH-Satzung

Opening clauses are provisions in the articles of association that authorise the shareholders to deviate from a specific provision in the articles of association in individual cases by means of a simple shareholder resolution (utilisation resolution). In GmbH articles of association, opening clauses can relate to different parts of the articles of association, such as the distribution of profits or the optional supervisory board. In the author's opinion, opening clauses have the effect that utilisation resolutions do not constitute amendments, violations or breaches of the articles of association. The work examines the permissibility of this effect in GmbH articles of association and distinguishes between small and large opening clauses according to the scope of the utilisation resolutions. While small opening clauses are regarded as unobjectionable avoidance of the law, large opening clauses, in the author's opinion, sometimes lead to circumvention of the law. Subsequently, the author applies the circumvented standards analogously.