articles of association
noun · Gesellschaftsvertrag
Gesellschaftsvertrag for a GmbH, Satzung for an AG, and a notary for both, § 2 Abs. 1 GmbHG and § 23 Abs. 1 AktG. Satzung also passes for a GmbH, the reverse does not, the form requirement reaches the amendment as well, and an AG constitution cannot be drafted as freely as English articles, § 23 Abs. 5 AktG.
Which translation, when
Why
English articles are a document the members adopt and alter by special resolution and file with the registrar; the German counterpart is a notarial instrument from the first day. § 2 Abs. 1 GmbHG requires the Gesellschaftsvertrag to be in notarial form and signed by every shareholder, and § 23 Abs. 1 AktG requires the Satzung of an AG to be established by notarial recording. The requirement does not stop at formation. Amending a GmbH constitution takes a shareholders’ resolution, a majority of three quarters of the votes cast and notarial recording of that resolution, § 53 Abs. 1 to 3 GmbHG, so the written consent an English lawyer would circulate does not amend anything. Video communication has eased the logistics of the notarial act where § 2 Abs. 3 GmbHG allows it, and for an amendment that route is open only where the resolution is unanimous, § 53 Abs. 3 Satz 2 GmbHG; the requirement itself has not moved. And the drafting freedom differs: an AG Satzung may depart from the AktG only where the statute expressly allows it, § 23 Abs. 5 AktG, so the bespoke constitution that works for an English company cannot simply be carried across.
Typical mistakes
- The two words are not symmetrical. Gesellschaftsvertrag is the statutory word for the GmbH, § 2 Abs. 1 GmbHG, and the safer choice, but Satzung is used for a GmbH constitution in practice and by the GmbHG itself, which heads § 53 Form der Satzungsänderung, so it is no mistake; Gesellschaftsvertrag for an AG is one, because the AktG knows only the Satzung, § 23 Abs. 1 AktG.
- An amendment resolved informally is no amendment: § 53 GmbHG asks for three quarters of the votes cast and notarial recording of the resolution before the change goes to the Handelsregister.
- Carrying English drafting into an AG Satzung meets § 23 Abs. 5 AktG, which permits departures from the AktG only where the statute says so, so clauses that are unremarkable in English articles can simply be void.
What matters
A share purchase agreement that warrants the target’s articles of association needs the German document named exactly: Gesellschaftsvertrag for the GmbH, Satzung for the AG, and in a simplified formation the Musterprotokoll, § 2 Abs. 1a GmbHG, which carries no negotiated clauses at all. The closing timetable feels the same difference, because every amendment agreed in the transaction has to go back through a notary, § 53 GmbHG.
What the machine misses
Machine output settles on Satzung for articles of association whatever the legal form, and for a GmbH the right word is Gesellschaftsvertrag, § 2 Abs. 1 GmbHG. The slip is small on the page and loud to a German reader, because Satzung belongs to the AG and to associations, and the translated clause about members altering the articles by resolution loses the two things that matter here: the notarial recording and the three quarter majority of § 53 GmbHG.
Examples
| to amend the articles of association | den Gesellschaftsvertrag ändern |
| a provision in the articles of association | eine Regelung im Gesellschaftsvertrag |
| the articles of association of the company | die Satzung der Gesellschaft |
| in accordance with the articles of association | nach Maßgabe der Satzung |
More notes on these sections
incorporation Gründung
capital increase Kapitalerhöhung