Virtual General Meetings Under the AktG

Virtual general meetings under the AktG: the framework

Virtual general meetings are a permanent option for German stock corporations. Since 2022, § 118a of the Stock Corporation Act (Aktiengesetz, AktG) allows the articles of association to provide, or to authorise the management board to decide, that the general meeting (Hauptversammlung) is held without the physical presence of shareholders or their proxies at the place of the meeting. The rule replaced the temporary COVID-19 legislation, which had allowed online-only meetings with heavily reduced shareholder rights. The permanent regime is different: it aims to replicate the rights shareholders have in a physical meeting, including a right to speak by video, a right to ask questions and follow-up questions, and a right to object to resolutions.

For listed companies, virtual general meetings have become a standard format, while some issuers have returned to physical or hybrid meetings.

This briefing explains the legal basis, the mandatory shareholder rights, technical requirements, the protection against challenges for technical failures and lessons from the first years of practice.

Legal basis: articles and time limits

A company can hold virtual general meetings only if its articles allow it. The articles can either provide for virtual meetings directly or authorise the management board to decide on the format (§ 118a(1) AktG). Both options must be time-limited: a provision or authorisation may cover a period of no more than five years after registration of the company or of the amendment to the articles (§ 118a(3) to (5) AktG). Companies that adopted authorisations in 2022 or 2023 will therefore need to renew them in the coming general meeting seasons.

The resolution amending the articles requires a majority of at least three quarters of the share capital represented, unless the articles provide otherwise. Proxy advisers and institutional investors have scrutinised such resolutions, and some have opposed authorisations that are not limited to a shorter period or that do not commit the board to preserving shareholder interaction. Many companies therefore choose a period shorter than five years and explain in the agenda how they intend to use the authorisation.

Shareholder rights in virtual general meetings

When virtual general meetings are held, the conditions in § 118a(1) sentence 2 AktG must be met. They can be summarised as follows:

The pre-submission of questions under § 131(1a) AktG is optional. If the board uses it, it must publish its report or its essential content at least seven days before the meeting (§ 118a(1) sentence 2 no. 5), and all properly submitted questions must be made available and answered no later than one day before the meeting. If the answers are continuously available from one day before and during the meeting, the board may refuse to answer them again in the meeting. In practice, many companies have chosen not to require pre-submission and instead allow questions live in the meeting, which keeps the process simpler and closer to a physical meeting. The choice should be made before the invitation is drafted, because it determines the publication schedule.

The chair of the meeting may determine that the right to information, follow-up questions and new questions may be exercised in the meeting exclusively by video (§ 131(1f) AktG). The articles or rules of procedure can authorise the chair to limit speaking and question time reasonably (§ 131(2) sentence 2 AktG), which is important for long meetings with many speakers.

Who must be present physically

Virtual general meetings are not entirely virtual. The members of the management board should attend at the place of the meeting, as should the members of the supervisory board, unless the articles allow them to participate by video. The chair of the meeting and, where the auditor must attend, the auditor must be present at the place of the meeting (§ 118a(2) AktG). A company-appointed proxy may be present. The meeting also requires minutes; for listed companies and resolutions requiring a three-quarters majority, a notary must record the minutes (§ 130 AktG), and the notary will attend at the place of the meeting.

Timetable for virtual general meetings

Virtual general meetings follow the same statutory calendar as physical meetings, with additional deadlines for the electronic rights. Counting backwards from the meeting date, a typical timetable for a listed company looks like this:

• At least 30 days before: publication of the invitation (§ 123(1) AktG), extended by the registration period where the articles require registration. The invitation must describe how shareholders can exercise their rights electronically.
• 30 days before: latest receipt of requests to add items to the agenda from shareholders holding 5% or EUR 500,000 of the share capital (§ 122(2) AktG).
• Seven days before: publication of the management board's report if the board requires questions to be submitted in advance.
• Six days before: latest registration if the articles require it (§ 123(2) AktG).
• Five days before: latest submission of shareholder statements; four days before, publication of the statements (§ 130a(2), (3) AktG).
• Three days before: latest submission of questions, if required by the board; one day before, publication of answers (§ 131(1a), (1c) AktG).
• Meeting day: identity checks for speakers, live transmission, speeches, follow-up questions, voting and objections.
• One month after: end of the period for actions to set aside resolutions (§ 246(1) AktG).

Because several deadlines fall within the last week before the meeting, the investor relations, legal and technical teams must work in close coordination. Statements submitted by shareholders must be screened for content that the company is not obliged to publish, for example statements that would make the board liable to prosecution or are manifestly incorrect, and the reasons for any omission should be documented. Answers published one day before the meeting should be reviewed with the same care as answers given orally, because incomplete answers remain a ground for challenge and for information enforcement proceedings.

Technical failures and actions to set aside resolutions

A central concern of companies is the risk that technical failures lead to actions to set aside resolutions (Anfechtungsklagen). The AktG addresses this in § 243(3) AktG: an action cannot be based on a violation of the electronic rights of shareholders in a virtual meeting caused by a technical failure, including failures affecting transmission, voting, questions, statements, speeches and objections, unless the company acted with gross negligence or intent. This protection does not cover legal errors, such as an incorrect refusal to answer a question, or the failure to provide the infrastructure at all.

Shareholders also retain the general remedies: the right to information can be enforced in special proceedings (§ 132 AktG), and resolutions can be challenged for violations of law or the articles within one month (§ 246(1) AktG). The question-and-answer process remains the most frequent basis of challenges in practice, so boards should prepare carefully and keep records of all questions and answers.

Lessons from practice with virtual general meetings

Several lessons have emerged from the first years of virtual general meetings under the permanent regime:

• Interaction matters to investors. Investors and shareholder associations judge virtual general meetings by how well they replicate the dialogue of a physical meeting. Live questions and genuine video speeches are expected.
• Choose a reliable service provider. Video speeches with identity checks, live queues for questions and voting systems require proven technology and support staff.
• Clear rules in the invitation. The invitation should explain how to register, connect, vote, submit statements, ask questions and speak, including technical requirements and the procedure for testing the video connection under § 130a(6) AktG.
• Hybrid options. Some companies hold physical meetings with online participation under § 118(1) sentence 2 AktG instead. This allows shareholders to attend in person and online but creates two channels to manage.
• Costs. Savings on venue and catering are partly offset by technology costs, so the decision is not purely financial. Companies should also budget for the internal resources needed to answer questions quickly during the meeting.

Small and non-listed stock corporations can also benefit from the virtual format, for example where shareholders are spread internationally. For closely held companies, a meeting at which all shareholders are present or represented and agree may also allow informal resolutions. For the GmbH, different rules apply: shareholder meetings by telephone or video are possible if all shareholders agree in text form (§ 48(1) GmbHG); see our briefing on GmbH shareholder meetings.

Choosing the right format for the next meeting

Whether virtual general meetings are the right choice depends on the shareholder structure, the agenda and the expected level of controversy. A routine meeting with dividend, discharge and auditor resolutions is well suited to a virtual format. A meeting with a contested agenda, activist proposals or a major transaction may benefit from a physical meeting, where the dynamics are easier to manage and the risk of technical challenges is lower. Boards should decide early, because the invitation deadline of at least 30 days before the meeting (§ 123(1) AktG) leaves little time to change course. See also our briefing on shareholder activism in Germany and our page on corporate governance.

How TRW & Co helps

We advise listed and non-listed stock corporations on virtual, hybrid and physical general meetings: amendments to the articles and authorisations, invitations and agenda, rules of procedure, question-and-answer processes, chair scripts, technical rehearsals and the handling of challenges. We work with the meeting's notary and service providers and support the company in information enforcement and challenge proceedings. Contact us to prepare your next general meeting.