Rulings on the law of non-competition, severance pay and other claims under corporate law
Below you will find one of the most comprehensive and up-to-date collection of interesting judgments of recent years on the law of non-competition, severance pay and other corporate law claims. You can find further judgments in corporate law on other corporate law topics on the overview page.
The judgments are updated continuously.
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Exclusion of shareholders by way of a judgement only in the event of the possibility of a settlement payment
Munich Higher Regional Court 2021
Since the necessity of paying the compensation out of free assets that do not affect the share capital figure results from the principle of capital maintenance laid down in Sections 30 (1), 34 (3) GmbHG and a balance sheet approach applies in this respect, payments to shareholders may not lead to the creation or deepening of an underbalance. Whether such an underbalance exists is not determined by the market values, but by the book values of a commercial balance sheet as of the balance sheet date, so that hidden reserves are not taken into account.
(2) After the Federal Court of Justice (BGH) decided in the case of a redemption carried out by resolution of the shareholders on the basis of a provision in the articles of association to this effect, the controversy which had existed until then in literature and case law as to whether a redemption becomes effective before payment of the compensation, to the effect that the redemption resolution becomes effective and enforceable upon its adoption irrespective of a compensation payment, this is also to be applied to the case of the exclusion of a shareholder by way of a constructive judgment.
(3) The obligation to maintain capital under Sec. 30 (1) GmbHG, on which the necessity of making the compensation payment to the shareholder to be excluded from the free assets of the company is based, serves to protect the creditors, but not the shareholder to be excluded, so that the latter cannot derive from this in his favour that the exclusion only takes effect with the payment of the compensation to him.
Distribution of the proceeds from the publication of telephone directories
BGH 2020
(1) The settlement agreement concluded between the parties to the dispute contains an effective waiver of the claims for repayment and damages in dispute.
Neither the agreed revenue-sharing arrangements nor the partnership agreements concluded between the parties are void on grounds of an antitrust infringement; in particular, there are no star contracts which are impermissible under antitrust law and which would lead to a restriction of competition in the horizontal relationship between the partner publishers.
(3) The waiver agreement is also not invalid for other reasons not derived from an invalidity of the revenue sharing provisions in the articles of association under cartel law or § 47 TKG.
Contribution law: Insurance obligation of a civil engineer with procuration
LSG Schleswig-Holstein 2020
(1) A decision issued during the appeal proceedings by which the pension insurance institution makes a repeated determination as to the existence of compulsory insurance under the social insurance scheme becomes the subject-matter of the appeal proceedings pursuant to section 96(1) of the SGG.
(2) A combined action for annulment and for a declaratory judgment against a decision establishing the obligation to pay social security contributions does not as a rule lack a general interest in legal protection or in a declaratory judgment because the subsequently issued decision on contributions has become final.
3 The pension insurance institution is authorized on the basis of § 28p, Subsection 1, Sentence 5, SGB IV, to determine compulsory insurance for a period extending beyond the specific test period.
Share, Request for Evidence, Conditional Capital Increase, Agreement, Consent Reservation, Parallel Proceedings, Taking of Evidence, Amendment of the Decision, Dividend, Influence
Cologne Higher Regional Court 2020
There is no attribution pursuant to Section 30 II WpÜG if it is merely a matter of maintaining the status quo for the period up to the actual transfer of the company to the purchaser, i.e. no agreements or actual influence going beyond the general duty of loyalty.
Contribution law: Requirements for a blocking minority excluding dependent employment
LSG Hamburg 2019
In the case of a managing director who is a shareholder, dependent employment is to be denied if the articles of association contain a blocking minority in such a way that the managing director can prevent any influence on his own actions and thus instructions that are not to his liking. This is the case if, without his consent, he cannot be dismissed as managing director, his contract of employment cannot be terminated or amended and the rules of procedure cannot be amended or cancelled or new ones issued.
Compensation, execution, inadmissibility, information, shareholders' meeting
LG Leipzig 2019
Insurance and contribution law: No protection of confidence in the head and soul case law of the Federal Social Court
LSG Baden-Württemberg 2019
(1) Protection of legitimate expectations in the so-called "head and soul" case-law of the BSG is ruled out, irrespective of the question as to whether it was an established and long-standing case-law, if, according to the applicant's own submission, the prerequisites of this case-law were already not fulfilled.
2 It is contradictory to subsequently invoke the protection of legitimate expectations if the statutory option of the status determination procedure was not used after the formation of the GmbH.
Cancellation of a pension commitment
BGH 2019
A limited liability company can only raise the objection of abuse of rights against claims arising from a pension commitment granted to its managing director if the beneficiary has breached his duties in such a gross manner that the loyalty to the company proven in the past subsequently turns out to be worthless or at least considerably devalued. This requires that the company has been put in a position that threatens its existence by the gross misconduct of the beneficiary; whether the infliction of an extraordinarily high loss can suffice in individual cases can be left open.
Advising duties of the lawyer towards the clients of a class action
OLG Düsseldorf 2019
On the liability for damages of the commissioned lawyer as well as a partner of the law firm due to violation of legal duties towards the mandating shareholder of two closed-end real estate funds, which had become distressed as a public partnership with direct, not fiduciary mediated, participation of the shareholders, on incurred legal costs.
In principle, it does not release a lawyer from his duty to advise an individual client if the latter approaches the lawyer through the intermediary of a third party in order to participate in a "class action" prepared by the latter, unless the client clearly indicates that he does not require advice at all or only in a certain direction.
Trust agreement with anticipated assignment of the company shares does not change the social security status of a majority shareholder-director of a GmbH
LSG North Rhine-Westphalia 2019
(1) A fiduciary relationship which merely establishes a right to issue instructions under the law of obligations and which involves the assignment of the shares in the company subject to a condition precedent has no influence on the assessment of the status under social security law of a managing director of a GmbH who is the majority shareholder.
2nd appeal pending under B 12 KR 11/19 R
Compulsory insurance of GmbH managing directors
LSG Baden-Württemberg 2019
(1) A GmbH managing director who does not hold more than 50% of the shares in the share capital is in principle a dependent employee. By way of exception, he is only to be regarded as self-employed if he holds exactly 50% of the shares in the share capital or if, in the case of a lower shareholding, he is granted a comprehensive blocking minority under the articles of association covering the entire business activity.
2. the delegation to a supervisory board of the powers to supervise the managing directors in order to prevent direct instructions from the general meeting of shareholders to the managing directors does not result in a comprehensive legal power which minority shareholder managing directors can invoke.
Managing Director
LG Munich II 2019
The effectiveness of the power of attorney and of the legal acts performed on behalf of the party is in any case abstract and independent of the conclusion and effectiveness of a lawyer's contract.
Cash value of a compensation payment and beta factor for determining the appropriate compensation pursuant to section 327b AktG
OLG Frankfurt a. M. 2019
1. the present value of the compensation payment in relation to the valuation date represents, in addition to the stock exchange price, a further lower limit of the appropriate compensation pursuant to section 327b AktG.
2. in the case of a listed company, the historical company-specific beta factor shall in principle be used to derive the future systematic risk of the company if this can be reliably determined and at the same time its stability over time in the future can be expected.
Actio pro socio of the shareholder of an internal GbR when asserting a compensation claim of the GbR against the withdrawn shareholder
OLG Düsseldorf 2019
(1) A partnership under the German Civil Code (BGB) is a purely internal partnership even if it has joint assets if the partners have also agreed this in the partnership agreement for this case.
(2) In an internal company, each shareholder has the right to assert social claims of the company against other companies by way of actio pro socio.
If, according to the partnership agreement of a self-employed GbR, in the event of a dispute there is an accumulation of client participation and participation in the goodwill, the obligation of the withdrawing party to have the value of the client base credited to it does not constitute an encroachment on the freedom to exercise the profession pursuant to Art. 12 GG, § 138 BGB, nor does it constitute an impermissible restriction on termination pursuant to § 723 (3) BGB.
Replacement of a locking cylinder
LAG Hesse 2018
(1) The managing board of a cooperative is guilty of breach of trust if, contrary to the articles of association, it has agreed a loan that is effective in relation to third parties without consulting other members of the board and without the consent of the supervisory board and has arranged for the loan to be paid out, even though the granting of the loan was not part of the decisions arising in the ordinary course of business that it was entitled to make alone in accordance with the content of its service contract.
(2) As far as the plaintiff referred to restrictions of the former managing director's powers in the internal relationship, it was irrelevant whether such restrictions existed. Following the established case law of the Federal Court of Justice, it was to be taken as a basis that the power of attorney is in principle abstract with regard to deficiencies in the internal relationship, i.e. these do not lead to the invalidity of the power of attorney. The situation is different in the event of a breach of a statutory prohibition which is also intended to protect the represented party. However, this exceptional case did not exist here. Insofar as the plaintiff claimed that the defendant's attorney had violated a prohibition under professional law, namely §43 a (4) BRAO, the Court of Appeal assumed with the case law of the Federal Court of Justice that such a violation, even if it had existed, does not result in the invalidity of the power of attorney.
Trust agreements, Trustor, Dependent employment, Shareholders' resolution, Shareholders' meeting, Managing director - service agreement, Shareholder-managing director, Articles of association, Trust relationship, Independent activity, Liability of the trustee, Fiduciary, Remuneration of the trustee, Share in the business, Share in the company, Sole shareholder-managing director, Managing director activity, Minority shareholder-managing director, Managing director agreement, Removal as managing director
LSG Baden-Württemberg 2018
The managing director of a GmbH, who is at the same time the sole shareholder of the GmbH, can nevertheless be employed subject to social insurance contributions if she only holds the company shares as a trustee.
Damages by managing director due to deletion of a provision in a company framework agreement
OLG Munich 2018
(1) In the case of pure pecuniary loss, the admissibility of the action for a declaratory judgment depends on the probability of damage attributable to the act of infringement. It is sufficient that, according to life experience and the usual course of events, it can be assumed with sufficient probability that damage will only arise in the future from the legal relationship.
(2) In the case of a single-member company, a formal resolution of the shareholders is not required; it is sufficient if the will of the sole shareholder is sufficiently clear.
3) The conclusion of the new framework agreement without a customer protection clause as in the old framework agreement constitutes conduct in breach of duty on the part of the managing director pursuant to Section 43 (2) of the German Limited Liability Companies Act (GmbHG), since this constitutes an overstepping of the entrepreneurial discretion.
Shareholder-director in the unitary company
SG Hanover 2018
1) The independent activity of a shareholder-manager in a GmbH & Co. KG with the type of unitary company presupposes a determining influence on the companies.
2. in the case of an appointment as managing director of the general partner GmbH whose sole partner is the limited partnership, a determining influence according to the partnership shares in the limited partnership or a blocking minority is required for the determination of independence due to § 47 subsection 4 GmbHG.
Legal power in the case of a fiduciary relationship and general power of attorney in a GmbH
LSG North Rhine-Westphalia 2018
(1) A general power of attorney does not result in a GmbH managing director not being bound by instructions.
(2) On the basis of a trust relationship, the trustee alone is a shareholder. A claim for surrender of the trust property, in particular for transfer of capital shares, does not lead to a shift of legal power in the company before the actual transfer.
Social security status of an assisting limited partner
LSG Berlin-Brandenburg 2018
(1) The decisive factor for the assessment of the status of a limited partner working in the limited partnership is the demarcation from the status of co-entrepreneur. If the limited partner is himself an acting co-entrepreneur in his activity, he cannot be employed in the same activity subject to compulsory insurance.
(2) In order to determine whether the activity constitutes an activity as a co-entrepreneur or employment, it is important whether the activity of the shareholder is based on the obligation as a shareholder, i.e. whether the obligation to perform work arises exclusively and directly from the corporate relationship or whether a relationship with the company under noncorporate law was also established.
Determination of the settlement claim in the case of a law firm
OLG Oldenburg 2018
(1) The application for the drawing up of a settlement balance sheet on a certain reference date satisfies the requirements of the requirement of certainty in section 253 (2) no. 2 of the Code of Civil Procedure. The decision as to which actions are to be taken in detail for this purpose can be taken in the enforcement proceedings. Therefore, it is not objectionable that the statement of claim does not specify a concrete calculation method for the determination of the value.
2) The division of the material assets and the legally unlimited possibility of soliciting the previous clients is the objectively obvious and appropriate way of disposing of a professional partnership. If the partners proceed in this way, the goodwill is thereby settled.
3. in the absence of a contractual agreement or special circumstances such as a non-competition clause, account must be taken of the principle recognised in the case of the dissolution of a partnership in the event of the departure of a partner that the unrestricted opportunity to enter into competition for all the clients of the partnership is, in principle, a sufficient substitute for participation in the value of the partnership. The reputation of a law firm and its business opportunities are essentially reflected precisely in its client base. This constitutes the predominant and decisive value of the goodwill of a law firm.
Management consultancy group, GmbH managing director, employee, service contract relationship, transfer agreement, integration into the business, no abuse of rights, appeal for representation
LAG Cologne 2018
(1) It does not constitute an institutionalised abuse of rights if all of the approximately 120 partners/senior partners in the German section of a globally active management consultancy group, which is organised as a GmbH and has approximately 1000 employees, are appointed as GmbH managing directors. This also applies if the partners/senior partners are at the top of the hierarchy of persons involved in management consulting tasks, but do not have to perform "classic" managing director tasks.
2. the activity of such a partner/senior partner as a specialised management consultant at the highest qualification level does not constitute a typical employee activity. The parties must therefore, within the framework of the overall assessment of all circumstances, adhere to the type of contract chosen by them - in this case: Service contract - if the actual handling of the contractual relations does not necessarily speak for an employment relationship.
3 The word "appointed" does not contain an additional qualified application requirement for § 14, Subsection 1, No. 1, KSchG.
Compulsory insurance of a shareholder-director of a GmbH
LSG North Rhine-Westphalia 2018
1) Dependent employment of GmbH managing directors is not excluded due to § 5.1 sentence 3 ArbGG. This provision is limited to the ArbGG and has no significance for social security law.
A GmbH managing director who is also a shareholder in the company's capital is independent if he has the legal power to determine the fate of the company by influencing the shareholders' meeting. Such legal power is given in the case of a shareholder who holds at least 50% of the shares in the share capital or, in the case of a lower capital participation, is granted a comprehensive blocking minority according to the articles of association.
(3) The applicant cannot rely on legitimate expectations.
Infringement of the word mark 'OCHSENBROT' by the sign 'Oxbrot' for bread and other bakery products
OLG Brunswick 2018
(1) As a procedural requirement, there must be a statement of a sufficient address at the time of the conclusion of the last oral proceedings. The indication can be cured in both factual instances and thus by corresponding submission in the appeal.
2. any defect in the application shall not affect the admissibility of the appeal. The indication of the appellant's address for service in the notice of appeal is not a condition of admissibility of the appeal.
3) Although there is no visual similarity between 'OCHSENBROT' and 'Oxbrot', there is a conceptual similarity and a high degree of phonetic similarity. The phonetic difference in the inter-syllable 'en' in the mark applied for is of little consequence and does not alter the phonetic similarity.
Dismissal, dependent employment, employment contract, working hours, business share, managing director, managing director employment contract, managing director authority, managing director activity, shareholder, shareholder resolution, self-employed activity, insurance obligation, health insurance, pension insurance
SG Duisburg 2018
Pension insurance, compulsory insurance, shareholders' meeting, consent
LSG North Rhine-Westphalia 2018
Adequacy of a contractual penalty
LG Landshut 2017
(1) The amount of a contractual penalty must be based, on the one hand, on how high an expected damage is and, on the other hand, on the relationship between the interests of the infringer in the act and the interest of the claimant in refraining from the act, in particular whether the infringer has fundamental rights on his side. Furthermore, the contractual penalty should not become a permanent source of income for the injured party.
(2) The assessment of the contractual penalty shall take into account the severity and extent of the breach of contract, the danger to the creditor, the economic situation of the parties, the amount of the possible and actual damage, the degree of fault of the debtor and the interest in preventing further acts of breach.
3. the personal conduct of the injured party in the legal dispute about the contractual penalty, in particular a harassing behaviour towards witnesses who are customers of the tortfeasor, may have an effect to the disadvantage of the injured party in the assessment of the contractual penalty.
Social security obligation shareholder-managing director
LSG Berlin-Brandenburg 2017
The decisive factor for the question as to whether a shareholder managing director acting within the scope of a managing director employment contract is subject to instructions from third parties in the structuring of his activities is not the objects of corporate policy. Only a comprehensive blocking minority, which includes all matters concerning the managing director himself, is suitable to justify the assumption of independence of the managing director.
suspensive effect, enforcement, pension insurance, compulsory insurance, working time, company, employment contract, shareholders' meeting, decision
SG Cologne 2017
Abuse of tax arrangements through the involvement of a GbR
FG Rhineland-Palatinate 2017
(1) If the turnover of a sole trader is arbitrarily divided between his sole trader and a partnership in which he holds a majority interest, with the aim that both the sole trader and the partnership do not exceed the small trader thresholds, this constitutes an abuse of discretion.
2. the activity of a wedding and funeral speaker is regularly not artistic.
Sufficient cause for justified distrust in the management of a real estate fund in the case of incorrectness of the prospectus for which the manager is responsible
OLG Munich 2017
1) § 166 (3) HGB gives the limited partner an extraordinary right to audit the management of the company, the content of which goes beyond § 166 (1) HGB, but requires the existence of an important reason. In this context, the standard does not provide a general right to information in order to work towards measures of the general management, but only serves to enforce rights under the partnership agreement or to protect the justified interests of the limited partner requesting information.
Accordingly, good cause exists if the interests of the limited partner are not adequately protected by the rights under § 166 (1) HGB and there is a risk of damage to the partnership or the limited partner; the claimant must in particular show that there is a justified distrust of the management.
3. there is sufficient cause for a justified distrust of the management if a prospectus of the company contains a massive error for which the management is responsible and which still today has a decisive influence on the economic development of the property company and thus of the company.
Injunctive and consequential claims due to infringement of business name or trademarks - Camouflage Couture
OLG Frankfurt a. M. 2017
Insolvency administrator, Condominium Act, condominium, condominium association, condominium owners' association, insolvency estate, debtor
OLG Cologne 2017
Contestation of resolutions and redemption of shares
LG Ravensburg 2017
Conditions for joining a partnership firm
LG Munich I 2017
A partnership firm cannot conclude an effective preliminary agreement on accession with a party interested in joining, because it would not be able to fulfil the obligation to conclude the main agreement arising therefrom, since not it but the individual partners are parties to the partnership agreement.
The doctrine of a defective company is not applicable if there is already a lack of intention to be legally bound with regard to the accession of a third party to the company.
Status determination, compulsory insurance, dependent employment, management, stock corporation, entrepreneurial risk, being bound by instructions, legal power, blocking minority
LSG Hesse 2017
Termination of a joint-stock company - Final abandonment of the intention to form the company
OLG Munich 2017
1. the E-V. AG ends when the founder finally abandons his intention to found the company. For reasons of clarity in the allocation of assets, however, the final abandonment of the founding intention is not purely internal. Rather, the termination of the V. AG requires an externally recognisable connecting factor for the abandonment of the founding intention.
In this case, the assets of E. V. AG pass ipso iure to the founder without the need for liquidation. Therefore, the founder is entitled and obligated under an Executive Board service contract already concluded with a third party.
Depending on the circumstances of the case, however, an adjustment of the term of the Executive Board service contract may be considered in accordance with the principles on the discontinuation of the basis of the contract.
5 The pre-AG - like the later stock corporation - is represented by the supervisory board vis-à-vis the management board pursuant to § 112 AktG.
Expenditure incurred in connection with the application for a television licence shall not be capitalised.
FG Baden-Württemberg 2017
(1) It is true that a broadcasting licence is associated with an economic advantage for the operator of a television station. However, in the absence of transferability, it is not an economic good.
(2) The fees charged by the Landesanstalt für Kommunikation for the licence as a regional television broadcaster and for the allocation of transmission capacities are not acquisition costs of the broadcasting licence.
Real estate transfer tax: On the prerequisites of a preconceived plan for the development of a plot of land
FG Rhineland-Palatinate 2017
A preconceived plan within the meaning of § 8 (2) sentence 2, 2nd alt. GrEStG exists if the existing shareholders have planned the construction project until it is ready for construction and have included the new shareholder in the company in order to successfully complete the project, and subsequently, even if the existing shareholders leave, the new shareholder is obliged to complete the planned construction project due to factual constraints.
Working hours, work performance, remuneration, illness, freelance work, statutory pension insurance, reimbursement of costs, compulsory insurance, pension insurance
LSG North Rhine-Westphalia 2017
Regulation of representation, liquidator, shareholders' resolution, articles of association, abstract power of representation
OLG Düsseldorf 2016
(1) An applied for concrete representation regulation is not registrable with regard to the exemption from the restrictions of § 181 BGB if the amendment to the articles of association regulating the abstract power of representation of liquidators cannot be registered in the shareholders' resolutions at least at the same time because the shareholders' resolution which in this respect, in view of its permanent effect, represents a "breach of the articles of association establishing the status" has not been notarised and is therefore - even if the resolution is passed unanimously - invalid.
Dismissal of the managing director for cause and revocation of his pension commitment
OLG Cologne 2016
(1) If, by resolution of its shareholders' meeting, the company transfers its registered office to another location and the managing director subsequently continues to work exclusively at the abandoned registered office, this may justify the dismissal of the managing director for good cause.
If the managing director of the company does not participate in its generally agreed integration into the group of the new majority shareholder, if he refuses to implement the decided relocation of the administrative headquarters, if he ensures by means of a circular e-mail to the customers of the company that the customers' ties to him personally continue, if he accesses the assets of the company on his own authority and if he finally becomes active for another company in the business field of the company, he devalues his many years of activity for the company in such a way that this can justify the revocation of a pension commitment in his favour.
Invitation to attend, Managing director agreement, Shareholder-managing director, Amendment to the articles of association, Amendments to the articles of association, Shareholders' meeting, Social security law, Dependent employment, Shareholders' resolution, Self-employed activity, Self-employed activity, Blocking minority, Managing director - third-party managing director, Managing director dismissal, Managing director activity, Instructions to managing directors, Minority shareholder-managing director, Managing director employment contract, Additional managing director, Appointment as managing director
LSG Baden-Württemberg 2016
1. on the status under social security law of the shareholder-director of a GmbH with a capital minority and a blocking minority with regard to instructions from the shareholders' meeting.
(2) The voting prohibition of § 47 (4) sentence 2 GmbHG does not apply to resolutions of the shareholders' meeting on instructions to the managing director.
Employment, catering business, shareholder, market hall, insurance obligation
LSG Baden-Württemberg 2016
Dependent employment relationship of a shareholder who is not a managing director
LSG Bavaria 2016
1. shareholders who are able to prevent resolutions of the shareholders' meeting which are not in their favour because of their position in the company may nevertheless be in a dependent employment relationship with the company if they are not at the same time managing directors.
(2) Unlike in the case of a shareholder designated as managing director, a blocking minority is not sufficient in the case of an assisting shareholder.
Transfer of a contractual relationship, including an arbitration agreement, from the transferring to the acquiring legal entity by way of a spin-off transfer
OLG Munich 2016
(1) The preservation of a substantive time-limit for bringing proceedings before a court which has no jurisdiction as to the place, subject-matter or function of the proceedings.
2. on the transfer of a contractual relationship, including an arbitration agreement, from the transferring to the acquiring legal entity by way of a spin-off transfer under transformation law.
(3) The interlocutory decision of an arbitral tribunal in which it affirms its jurisdiction does not constitute an arbitral award within the meaning of sec 1054 of the Code of Civil Procedure, which is why the standard of sec 1063 (2) of the Code of Civil Procedure, which applies to proceedings on the setting aside of an arbitral award, does not apply.
(5) Section 281 (2) sentence 3 of the Code of Civil Procedure provides for the procedural unity after referral, so that the filing of an action with a court that is not competent in terms of location or subject-matter before the expiry of a time limit for substantive law actions and the subsequent referral to the competent court preserves the time limit. This applies even if the referral is made erroneously without a corresponding application or if the action is brought in the wrong branch of court.
Employment contract, supervisory board, working hours, discretion, breach of duty, premature termination, good cause
LG Münster 2016
Working hours,
LSG Thuringia 2016
Employment contract, managing director - employment contract, association meeting, termination, working hours, secondary employment
ArbG Dessau-Roßlau 2016
Compulsory insurance, long-term care insurance, graduate chemist, shareholders' meeting, employment contract, working hours, objection procedure, entrepreneurial risk, obligation to make contributions
LSG Thuringia 2016
Status determination procedure, insurance obligation, entrepreneurial risk, shareholders' meeting, pension insurance, articles of association, profit and loss transfer agreement
LSG North Rhine-Westphalia 2016
Investment company, fund company, company, founding shareholder, gross breach of duty, damages, breach, prospectus liability
LG Hamburg 2016
No isolated enforcement of payment claims between GbR and former shareholder
OLG Hamm 2016
1. claims for payment between a GbR and a former shareholder who has left the company are generally no longer enforceable in isolation, but are to be included in the settlement account as dependent accounting items. This has the consequence that individual claims which are subject to the enforcement bar can no longer be assigned from the time of the withdrawal of the shareholder.
Retirement benefits, employment relationship, shareholders' meeting, termination, breach of duty, collective bargaining agreement, waiting period
ArbG Essen 2016
Resolutions of a GmbH shareholders' meeting with reference to public procurement law in local public transport
OLG Düsseldorf 2016
(1) Article 5(2) of Regulation (EC) No 1370/2007 covers both service concessions and public service contracts. In this context, an in-house award to a mixed public operator in the form of individual awards is compatible with Art. 5 (2) EU Regulation 1370/2007 if sole control is given with regard to the specific public service contract to be awarded and if the mixed public operator does not operate outside the areas of responsibility of all the public authorities involved.
(2) In the case of a vertical joint venture, only cases where either the competitive behaviour of the parent companies on the upstream or downstream market is coordinated or competitors of the parent companies on the upstream or downstream market are squeezed out by being cut off from the services of the joint venture are subject to the prohibition of cartels under Section 1 ARC. There is no restriction of competition in the fact that the parent companies have hitherto contracted third parties and now set up and contract a joint venture, with the result that the previous demand for third party suppliers is eliminated.
A partial exclusion of voting rights in the shareholders' meeting exists in any case if the voting right is excluded for resolutions of a certain content which concern the main business activity of the company. Such exclusion of voting rights always requires the consent of all shareholders concerned.
Status determination procedure, compulsory insurance, articles of association, capital contribution, majority of votes, pension insurance
LSG North Rhine-Westphalia 2016
Social security, compulsory insurance, compulsory contribution, managing director, company share, employment relationship, self-employment, assumption of risk
SG Stade 2015
Status determination procedure, compulsory insurance, shareholder-managing director
LSG North Rhine-Westphalia 2015
Granting of sole management and sole representation authority in the case of a two-tier OHG
OLG Munich 2015
(1) If a partner in a general partnership seeks by way of an interim injunction from a co-partner the reinstatement of the originally existing power of sole management and sole representation which had previously been withdrawn from him, his own misconduct leading to the withdrawal of this power may play a decisive role.
(2) If a number of legal disputes are pending between co-partners of a general partnership, it does not constitute a breach of duty or a breach of the social duty of loyalty if one of the co-partners leaves individual letters addressed to him by the other side unanswered.
Status determination GmbH Managing Director
LSG Bavaria 2015
1 Whether a managing director of a GmbH is a dependent employee or not is determined by the overall picture of the work performance and depends on which characteristics predominate.
2. superior professional competence of the managing director is of secondary importance if the managing director has no legal power to prevent instructions from the shareholders.
Family relationships with the owner of the majority shareholding cannot eliminate an actual dependence on instructions. A subjective fair-weather independence cannot be taken into account when determining the status.
Compensation claim of an insurance agent
LG Munich I 2015
Managing director, shareholder, pension insurance, insolvency, compensation, insurance obligation
LSG North Rhine-Westphalia 2015
Central regulation, discount, cost recovery, trader, partnership agreement, limited liability capital, business model, GmbH, compensation, shareholder, trust agreement, limited liability contribution
LG Bonn 2015
Assignment, employment contract, work performance, working time, integration, continued payment of remuneration, case of illness, shareholders' meeting, statutory pension insurance, entrepreneurial risk, insurance obligation, objection, notice of objection
SG Darmstadt 2015
Compulsory insurance, self-employed activity of a collaborating GmbH shareholder
LSG Bavaria 2015
(1) An employee of a GmbH can only prevent instructions from the managing director on the basis of his shareholder rights. If he does not have the legal power to cancel or weaken his obligation to follow instructions as an employee by instructions of the shareholders' meeting, he is regularly bound by instructions. An employee GmbH shareholder only has such legal power if he has a controlling influence on the shareholders' meeting. A share of 50% in the company is not sufficient for this.
Insurance law status as shareholder-managing director
LSG Bavaria 2015
1. insurance law status of a shareholder managing director with 49% share in the company, evaluation of the right to co-determine the appointment of managing directors as well as the Texas shoot out regulation in the articles of association.
2. a "Texas Shoot out" provision in the company's articles of incorporation does not automatically make the shareholder a self-employed person.
Co-entrepreneurship in the context of a freelance practice
BFH 2015
If a shareholder receives remuneration that depends on the profit situation and is only measured according to his own turnover and if, in addition, he is excluded from participating in the company's hidden reserves, a co-entrepreneurial position can only be affirmed if there is a particularly pronounced co-entrepreneurial initiative because of the co-entrepreneurial risk that only exists to a limited extent. However, this is not the case if there is joint management authority, but significant areas are actually excluded from this.
Sales bonus of a sales employee as vGA
FG Baden-Württemberg 2015
(1) A profit-sharing bonus granted in the form of a sales bonus is not a vGA within the meaning of Section 8 (3) sentence 2 KStG if there are convincing operational and/or entrepreneurial reasons for granting a sales bonus instead of a profit bonus to the shareholder-managing director.
(2) In the event that, according to the allocation of duties in the internal relationship, the managing director entitled to a bonus is exclusively responsible for sales, a sales bonus is also to be recognised for tax purposes if it is not limited in terms of time or amount and, in conjunction with the other salary components, does not lead to an inappropriate salary endowment.
Shareholder, right to issue instructions, social security, notice of contribution
LSG North Rhine-Westphalia 2015
Compensation, insolvency, real estate fund, fund, termination agreement
LG Hamburg 2015
Company continuation
OLG Oldenburg 2015
(1) If the plaintiff, who has been awarded more or something different than requested at first instance, applies for the defendant's appeal to be dismissed, the defect may be cured by the permission contained therein, because the application for dismissal of the appeal also constitutes permission and, ultimately, an acknowledgement of the decision of the court of first instance which infringes section 308 of the Code of Civil Procedure.
(2) The question whether there is a continuation of the business must be answered from the point of view of the relevant public, for which the sole decisive factor is that the business name actually used by the previous proprietor and continued by the purchaser has such a dominant character that the public equates it with the business and regards the purchaser's conduct as a continuation of the previous business name.
Minority shareholder-managing director, unemployment insurance, social security liability, pension insurance, shareholder agreement, employee, managing director, minority shareholder, employment contract, shareholder, insurance liability, shareholder meeting, employment relationship
LSG Lower Saxony-Bremen 2015
Contract in violation of cartel law does not yet justify a claim for damages
LG Munich I 2014
(1) A claim for damages under Section 33 (2) ARC is available to the party affected - i.e. the party adversely affected by the infringement as a competitor or other market participant - but not to the partner to the agreement in violation of antitrust law.
2 A claim of the contracting party of a contract contrary to cartel law does not result from § 812 BGB.
Status determination procedure, employment promotion, self-payer, catalogue of remedies, incapacity for work, equality of votes, compulsory insurance, minority shareholding, dependent employment relationship, prohibition of self-contracting, exemption, management
LSG North Rhine-Westphalia 2014
Disability, participation, company, shareholder, shareholders' meeting, articles of association, GmbH, health insurance, pension insurance, insurance obligation
LSG North Rhine-Westphalia 2014
Pension insurance, status determination, partnership agreement, insurance obligation
LSG North Rhine-Westphalia 2014
Shareholders' meeting, GmbH, resolution, pension commitment
LG Cologne 2014
Managing director, compulsory insurance, employment, family company, self-employment, entrepreneurial risk
LSG Berlin-Brandenburg 2014
Insurance law status of a shareholder-director
SG Munich 2014
An independent activity of a shareholder-director is only to be assumed in cases where the shareholder-director owns the majority of the shares or has been granted a blocking minority.
Provision of legal proceedings in connection with the resignation of a managing director of a private limited company - Effect of the fiction of law
BAG 2014
Pension insurance, compulsory insurance, social security, bound by instructions
LSG North Rhine-Westphalia 2014
Status determination procedure, shareholder-managing director, pension insurance, compulsory insurance, exemption from insurance, long-term care insurance, health insurance, unemployment insurance, integration, overall picture, GmbH, shareholding, share capital
LSG North Rhine-Westphalia 2014
Health insurance, prohibition of self-contracting, remuneration, sole proprietor, compulsory insurance, blocking minority, minority shareholder, pension insurance, being bound by instructions, entrepreneurial risk, overall picture, shareholder position, service contract, exemption from insurance, long-term care insurance
LSG North Rhine-Westphalia 2014
Voting agreement, obligation under the law of obligations, voting, voting agreement, unemployment insurance, health insurance, pension insurance, long-term care insurance, employer's contribution, health insurance, bound by instructions, work, venture capital, entrepreneurial risk, compulsory insurance, work process, operating expenses, exemption from insurance
LSG Thuringia 2014
(1) A voting agreement concluded verbally only establishes an obligation under the law of obligations with the consequence that a vote is generally valid even if it is cast contrary to an effective voting agreement. In the absence of a corresponding shareholder resolution, it does not have any effects under company law.
Legal succession in the case of a contractual obligation to cease and desist
OLG Karlsruhe 2014
(1) Unlike the statutory duty to cease and desist, the contractual duty to cease and desist passes to the universal successor under § 131 I No. 1 UmwG.
(2) The risk of repetition shall only cease to exist in the event of the transfer of a contractual obligation to cease and desist to the legal successor if the promised obligation appears to be suitable to genuinely and seriously deter the legal successor from repeating the infringing act and the legal successor refers to the transfer of rights and thereby indicates that the promise of contractual penalties also settles this dispute.
(3) In the main proceedings, a counterclaim seeking the setting aside of an interim injunction pursuant to section 927 of the Code of Civil Procedure is not admissible.
Admissibility, legal proceedings, determination of legal proceedings, position of an organ, employment relationship, sic-non case, declaration of resignation from office
LAG Berlin-Brandenburg 2014
Existence of dependent employment
LSG North Rhine-Westphalia 2014
The standard of assessment for the existence of dependent employment is § 7, Subsection 1, Sentence 1, SGB IV. According to this, employment is non-self-employed work, in particular in an employment relationship. According to the established case law of the BSG, employment requires that the employee is personally dependent on the employer. In the case of employment in an external enterprise, this is the case if the employee is integrated into the enterprise and is subject to the employer's right to issue instructions covering time, duration, place and manner of performance. This right to be bound by instructions can be limited - primarily in the case of services of a higher nature - and refined to "functionally serving participation in the work process". In contrast, a self-employed activity is primarily characterised by the own entrepreneurial risk, the existence of one's own place of business, the possibility of disposing of one's own labour and the essentially freely arranged activity and working time. Whether a person is employed or self-employed is determined on the basis of the aforementioned circumstances according to the overall picture of the work performance and depends on which characteristics predominate; on the constitutionality of this distinction: BVerfG, Order of 20.5.1996, 1 BvR 21/96, SozR 3-2400 § 7 No. 11).
compulsory insurance, health insurance, social security status, self-employment, managing director, entrepreneurial risk
LSG Baden-Württemberg 2014
Right to information, due diligence
Cologne Higher Regional Court 2013
Cessation of the reason for the order at the time of the decision to dismiss the applicant
OLG Naumburg 2013
(1) If a GmbH seeks an injunction against one of its co-shareholders and managing directors prohibiting him from any activity for the company and at the same time from any anti-competitive conduct until he is dismissed, the grounds for the injunction cease to exist at the point in time up to which a resolution to dismiss him could have been passed.
Limitation of the right of direct shareholders of publicly traded companies to information about co-shareholders only by the prohibition of the unlawful exercise of rights and the prohibition of harassment
BGH 2013
(1) An investor who holds a direct interest in a publicly traded company has a claim against the company and the managing partner to be informed not only of the names and addresses of the investors who hold a direct interest but also of the names and addresses of the investors who hold an indirect interest via a trustee if the investors who hold an indirect interest have acquired the legal position corresponding to that of a direct shareholder in the internal relationship of the shareholders with each other and with the company in accordance with the contractual provisions, in particular the interlocking of the partnership agreement and the trust agreement.
2 The shareholder's request for information is only limited by the prohibition of the inadmissible exercise of rights and the prohibition of harassment pursuant to § 226 BGB.
Social security, managing director
LSG Baden-Württemberg 2013
A right to information can be excluded neither by a provision in the partnership agreement nor by a provision in the trust agreement.
BGH 2013
(1) An investor who has participated indirectly in a public company through a trustee has a claim against the company and the managing partner to be informed of the names and addresses of the investors participating directly and indirectly if, in accordance with the contractual provisions, in particular the interlocking of the partnership agreement and the trust agreement, he has acquired the legal position corresponding to that of a direct shareholder in the internal relationship between the shareholders and with the company.
2 The right to information can be excluded neither by a provision in the partnership agreement nor by a provision in the trust agreement.
Appeal, shareholder exclusion, effectiveness, arbitration agreement, concentration requirement, resolution defect dispute, confiscation order, nullity
Düsseldorf Higher Regional Court 2013
Injunction, definiteness, competitive act, prohibition, employee, salary agreement, need for legal protection
ArbG Herford 2013
Requirement for a notice of appeal against a decision not to grant leave to intervene in the case of opposing interveners
BGH 2013
(1) The necessary content of the notice of appeal pursuant to § 544.1 of the Code of Civil Procedure is subject to the same requirements as the notice of appeal, since pursuant to § 544.6 sentence 2 of the Code of Civil Procedure the filing of the complaint of non-admission in due form and time is deemed to be the filing of the appeal in the case of admission of the appeal.
(2) It is part of the necessary content of the notice of appeal under section 519(2) of the Code of Civil Procedure as well as of the notice of appeal under section 549(1) of the Code of Civil Procedure to state for and against which party the appeal is brought. The notice of appeal must make it clear, either on its own or with the aid of further documents, who is to be the appellant and who is to be the respondent by the expiry of the time limit for appeal.
(3) Where the successful opponent at the lower court is composed of more than one opponent, the appeal shall, in case of doubt, be against the whole of the contested decision and thus against all the opposing opponents, unless the notice of appeal indicates a limitation of the challenge.
Ineffective pension clauses in a lawyer's partnership agreement
LG Munich I 2013
(1) The declaratory interest of an action for future pension payments is not extinguished by the fact that corresponding events may occur which render an obligation to pay a pension obsolete in the future. This is then to be asserted, if necessary, by means of an enforcement counterclaim.
(2) The clause in a partnership agreement according to which a partner who has left the partnership remains liable for pension payments violates the mandatory provision of § 723 (3) BGB according to which the right of termination may not be restricted. The obligation to pay pensions is to be measured against this clause, because any termination - both ordinary and extraordinary termination - does not affect the liability for pension payments.
PKH application not sufficient to meet the time limit for bringing an action
OLG Karlsruhe 2013
(1) If the articles of association provide that resolutions of the shareholders may be challenged by an action within three months of the adoption of the resolution, the filing of an application for court-assisted legal aid shall not be sufficient to comply with the time limit.
2. the exclusion of a shareholder's claim to compensation is invalid even in the event of exclusion for good cause; such a provision cannot be interpreted as a promise of contractual penalty either.
Appeal, compulsory social insurance, limited liability company, compulsory insurance, unemployment insurance, pension insurance
LSG Thuringia 2013
Termination restriction, clause, partnership agreement, pension claim, former partner, continuing liability, termination restriction, declaratory interest, need for legal protection
LG Munich I 2013
1) A clause in a partnership agreement according to which partners are personally liable without limitation and without compensation for pension claims of former partners even after they have left the partnership is in principle null and void pursuant to § 723 III BGB.
Compulsory insurance - member of the management board of a joint stock company
LSG Berlin-Brandenburg 2013
1. members of the management board of a joint stock company without a qualified majority shareholding in the joint stock company are regularly employed on a dependent basis.
Exclusion of a limited partner for breach of competition law
LG Munich I 2012
1. an important reason leading to exclusion as a limited partner may also lie in the disruption of the basis of the business, which is given in the case of a considerably strong competitive position of both parties.
2) There is a non-competition clause also at the expense of the limited partner; the rule of §§ 112, 113 HGB with regard to the general partner only clarifies that competitive behaviour is generally excluded from the outset without contractual consent in the case of the general partner; § 165 HGB only has the function in the case of the limited partner that a justification for the non-competition clause is necessary.
A request for information pursuant to § 51a GmbHG against the general partner GmbH can also have a sensitive effect on the competitive relationship and massively impair the KG in the perception of its own market opportunities.
Own use of a business opportunity by a managing partner of a GbR
BGH 2012
(1) The claim for transfer of ownership of a plot of land by surrender and grant of registration cannot be decided by basic judgment. This also applies if a right of retention is asserted against the claim deemed to exist by the court on account of a counterclaim that is disputed as to its amount.
(2) The business opportunity doctrine is applicable to the managing partner of a civil law partnership in any case where the partnership is a "profit making" or "business carrying" partnership or is engaged in commercial activities.
(3) The enforcement bar does not prevent the isolated assertion of a claim by the company for damages by way of in rem restitution against a shareholder-director who has left the company due to the infringement of a business opportunity of the partnership under civil law.
Insurance obligation of minority GmbH managing directors after participation of financial investors
LSG Bavaria 2012
On the social security obligation of GmbH shareholders/managing directors - no fair-weather self-employment - shareholder majority of financial investors
Minority GmbH managing directors are also subject to compulsory insurance if their previous majority shareholding as founding partner becomes a minority shareholding solely as a result of the expansion-related admission of a financial investor.
Shareholders' meeting, shareholders' resolution, declaration of nullity, prohibition of voting, contestation
Düsseldorf Higher Regional Court 2012
Interconnected proceedings, subsequent proceedings, application for legal aid, interlocutory injunction, jurisdiction, Court of Appeal
OLG Hamm 2012
(1) Decide on the setting aside of a previously granted interim measure if
(2) The Court of Appeal is not prevented by Paragraph 513(2) of the ZPO from examining jurisdiction in accordance with the first sentence.
(3) The dismissal of the main action by a provisionally enforceable appeal judgment is not a circumstance which can justify the setting aside of the interim measure granted in order to preserve the claim, unless an examination of the provisionally enforceable appeal judgment shows that it is well founded in law and that the appeal brought against it is unlikely to succeed.
Partnership company, enforcement counterclaim, set-off, right of retention, litigation settlement, protection of name, advertising statement, letterhead design, limitation period
OLG Hamm 2011
Interpretation, individual case, employment guarantee, agreement, severance pay, company, termination for cause
LAG Hamm 2011
1. interpretation in individual cases:
(2) The agreement of an employment guarantee together with severance pay in the shareholders' resolution does not relate to the case of extraordinary termination of the employee by the company for reasons of conduct.
Unsuccessful appeal - obligation to pay interest and repay loan
BAG 2011
Compulsory insurance, exemption from insurance, status, employment, self-employment, third-party managing director
SG Düsseldorf 2011
Shareholders' meeting, redemption, shares
OLG Koblenz 2011
Business cessation due to the contribution of a business to a capital company without the granting of company rights - Business contribution as premium of a cash foundation - Hidden contribution in kind
FG Baden-Württemberg 2011
1. the gratuitous transfer of a business to a corporation without the granting of corporate rights is deemed to be a cessation of the trade or business pursuant to section 16(3) sentence 1 of the Einkommensteuergesetz (EStG - German Income Tax Act), since the increase in the value of the shares in the corporation alone does not constitute consideration.
2. the provision of section 6(3) of the EStG is not applicable in the case of a hidden contribution, since it is necessarily preceded by a withdrawal of the business assets, so that a transfer of the business is not possible.
If a business is contributed to a corporation and the contributor does not receive any new shares in the company in return, there is no contribution in kind within the meaning of § 20 subsection 1 UmwStG, so that the corporation cannot continue the contributed business assets at book values.
(5) In determining the profit from the termination of the business, the fair market value of the assets transferred to the corporation at the time of termination must be used, from which the costs of termination and the book values must be deducted.
(6) If a cash formation is actually carried out, there is no hidden contribution in kind within the meaning of § 19 (4) GmbHG if, in addition to the cash formation, a business is contributed to the GmbH's assets.
Settlement agreement, claim for transfer of ownership, patent register, limited partnership, voluntary litigation status
LG Düsseldorf 2011
Company, contract medical practice, immorality, sale of a contract medical practice, right of termination
OLG Hamm 2011
(1) In a partnership agreement on a supra-local professional practice association between an MVZ sponsoring company and a panel doctor, a de facto sale of a practice can be regulated via the withdrawal provision, in particular with regard to the seller's obligation to "transfer" his panel doctor licence.
2 An objective justification for a termination clause may be the individual's own wish to leave the company for income tax reasons only after reaching the age of 55.
(3) The economic interests of the remaining partner in a joint practice alone do not justify an effective commitment under the law of obligations to retain the licence to practise as a panel doctor of the withdrawing partner.
(5) The authorisation may also include the waiver of the panel doctor's licence. The highly personal nature of the authorisation does not preclude this.
Violation of the right to be heard for lack of knowledge of the contents of a partnership agreement in the case of patient entrainment
BGH 2010
(1) A party's right to be heard is infringed in a manner relevant to the decision if the court bases its decision on the "normal case" of a comparable case constellation instead of taking note of the submitted content of the parties' partnership agreement which, by way of the required interpretation, offers indications to be taken into account that the parties have agreed on a different form of the dispute.
Status determination; GmbH; Shareholder-managing director; Minority shareholding in operator GmbH; Responsible only for technical area; Dependent employment
LSG Berlin-Brandenburg 2010
Managing director employment contract, shareholders' meeting, GmbH
OLG Celle 2010
Arbitration agreement, practice purchase agreement
OLG Cologne 2010
Responsibility, Director
LAG Baden-Württemberg 2010
(1) The director of the general partner limited of a KG is appointed by law to represent this group of persons and is therefore not deemed to be an employee within the meaning of the Labour Court Act pursuant to § 5 I 3 ArbGG.
This applies in any case if German law applies to the employment contract with the KG.
Employment relationship, extraordinary termination, shareholders' meeting, resolution, business documents, non-issuance in breach of contract
KG 2010
Right to injunctive relief in the event of disloyal assertion of information claims by GmbH shareholders
LG Munich I 2010
(1) The fiduciary duty of a GmbH shareholder may result in the shareholder being prevented from asserting the rights to information pursuant to § 51a GmbHG.
(2) The enforcement of the claim to cease and desist from the unfaithful assertion of information claims does not require a shareholders' resolution.
Defects in the adoption of resolutions in the event of a resolution of approval by the shareholders' meeting
OLG Frankfurt 2009
(1) The articles of association may provide for a qualified majority requirement when approving a transaction outside the ordinary course of business.
Jurisdiction: No jurisdiction of the labour courts for claims for damages arising from a promise by the parent company to transfer shares if the employment relationship existed with the subsidiary, jurisdiction, damages, parent company, transfer of shares, subsidiary company
LAG Hamm 2009
Compensation claim, dispute, partnership, right to terminate, restriction
OLG Munich 2009
Estate claim, administrator, repayment, profit shares, counterclaim
OLG Celle 2009
(1) After an administration of the estate has been ordered, a claim under the estate may be asserted in court only against the administrator, but not against the heir; the separation of the estate is intended to protect the heir not only from liability with his own assets, but also from personal involvement in a dispute under the law of the estate.
(2) The dismissal of an action as inadmissible does not mean that the counterclaim is inadmissible.
Terms and conditions, contractual penalty, set-off, damages, default interest, application, employment contract, repayment agreement, company claims, actio pro socio, limitation period, employment relationship
LAG Berlin-Brandenburg 2009
1. a request for payment of default interest at a rate of 5 % above the base rate shall be interpreted as requesting interest at a rate of 5 percentage points above the base rate.
(2) If the parties agree on a "gross monthly remuneration" as a contractual penalty in a form employment contract and if the monthly remuneration is composed of a fixed salary and a variable share in sales, the contractual penalty provision violates the transparency requirement of Sec. 307 (1) Sentence 2 BGB due to a lack of certainty.
3. an individually negotiated agreement on the repayment of training costs in the event of premature termination of the employment relationship by the employee is ineffective pursuant to § 242 BGB, at least from the point of view of disturbed contractual parity, if the duration of the commitment exceeds a commitment period to be regarded as reasonable by a multiple and the expiry of the commitment period depends on decisions by third parties.
(5) If, in the course of a conciliation meeting, parties negotiate claims of one side, the limitation period for counterclaims of the other side shall only be suspended pursuant to section 203 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) if the counterclaims are specifically introduced into the meeting and the other side agrees thereto.
6. a set-off with claims for damages or other payment claims against a gross wage claim is excluded due to the lack of mutuality of the claims according to § 387 BGB as long as it is not clear how high the wage taxes and social security contributions to be paid on the gross wage claim are.
Limited partnership, shareholders' resolution, request for evidence, time limit, exclusion of shareholders, amortization, shares, good cause
OLG Naumburg 2009
Shareholders' resolutions, actions for a declaration of nullity, defective resolutions, transfer of shares
OLG Celle 2009
Limited partner's contribution, capital contribution, partners' meeting
LG Frankfurt/Oder 2008
Severance pay, interim relief, claim for damages, economic disadvantages, hardship
Düsseldorf Higher Regional Court 2008
Company shareholding, reassignment, defective purpose
Düsseldorf Regional Court 2008
Bad faith, guarantee, loan claim, breach of duty, damages
Düsseldorf Higher Regional Court 2008
Criminal warrant, indictment, failure to expressly designate form of guilt, bankruptcy, unreliability under weapons law.
OVG Münster 2008
Dissolution, disruption of personal relationships
OLG Brandenburg 2008
The impossibility of achieving the company's purpose due to a breakdown in the personal relationship between the shareholders presupposes that a conflict between two equally strong groups of shareholders makes it impossible to form the will necessary for the company.
On the immoral intentional damage in the case of a planned withdrawal of company assets of the GmbH by its sole shareholder
BGH 2008
On the immoral intentional damage - also in the special form of the existence-destroying intervention - in the case of a planned withdrawal of company assets of the GmbH by its sole shareholder.
Claims for residual remuneration, admissibility of legal action, quasi-employee status
LAG Rhineland-Palatinate 2008
Severance pay, payment, good cause
Düsseldorf Higher Regional Court 2008
Severance pay, breach of duty, damages, enforcement counterclaim
OLG Cologne 2008
On the prerequisites for a renewed termination without notice due to unlawful acts of competition after a judicially challenged extraordinary termination by the employer.
LAG Hamm 2007
Shareholders' meeting, shareholders' resolution, abuse of rights
OLG Celle 2007
Lawyers' partnership under civil law - participation of a "junior partner" under company law
OLG Celle 2007
(1) If there is no express agreement on the conclusion of a partnership agreement between lawyers who act "externally" as a partnership, it is decisive for the question of the participation under partnership law of a "junior partner" - in particular for his claim to severance pay - whether the departing partner made a contribution and whether he received a fixed monthly payment or a certain profit distribution formula was agreed. In contrast, the designation of the payments made vis-à-vis the tax office is of secondary importance.
2) If a "junior partner" conducts negotiations with the other lawyers by exchanging different "draft contracts" which expressly provide for the commencement of the partnership and fix certain increases in the partnership shares for the "junior partner", this is an indication that the "junior partner" did not already have a shareholding under company law.
3) An exclusion of the claim for compensation or its limitation to the proportionate value of the practice inventory excluding the "good will" is in principle unobjectionable if the contract waives a client protection clause or a corresponding non-competition clause to the detriment of the departing party and the latter is thereby enabled to build up his own existence taking with him the clients he has already been looking after.
EuGVVO, jurisdiction, submission of documents, shareholder, factual group, intervention, contesting, general meeting of shareholders
Stuttgart Higher Regional Court 2007
1) The international jurisdiction of minority shareholders based on the legal concept of a qualified de facto group results from the regulation of non-contractual breaches of law in Art. 5 No. 3 EuGVVO. According to this provision, the place of performance is the seat of the controlled enterprise.
(2) Whether the legal concept of the qualified de facto group, which the Federal Court of Justice has abandoned in GmbH law in favour of the intervention which destroys the existence of the company, is to be recognised in stock corporation law in view of the protective mechanisms provided for by law is doubtful, but can be left open.
(3) Minority shareholders of a controlled stock corporation who demand the refraining from or the reversal of restructuring measures do not satisfy their burden of presentation and proof by referring to an expert opinion without a more detailed examination of the content of the counterparty's submission for the disadvantageous nature of the measures objected to as qualified de facto grouping.
(5) The expediency of restructuring measures is subject to judicial review only to a limited extent, also from the point of view of the duty of loyalty, due to the entrepreneurial discretion of the management bodies.
Litigation authority and information rights of individual members of the Supervisory Board
Stuttgart Higher Regional Court 2007
(1) Individual members of the supervisory board lack standing to bring an action for an injunction against the stock corporation due to restructuring measures which, in the opinion of the supervisory board member, should be impermissible as qualified de facto grouping.
2. an individual member of the supervisory board may not, without a corresponding majority resolution of the body, demand from the controlled enterprise the submission of documents for inspection by the supervisory board beyond the rights to information provided for by law.
KG, transfer
OLG Bremen 2007
Ancillary obligation, ancillary intervention, procedural autonomy, contract for work and services
OLG Karlsruhe 2007
dependent employment; compulsory insurance in the branches of the statutory social insurance; atypical silent partnership; establishment of a GmbH
LSG Berlin-Brandenburg 2007
Management Board, appointment
LG Düsseldorf 2006
Dispute over prohibition of competition of a former GmbH managing director
OLG Celle 2006
(1) Where a dismissal of an action on a single cause of action is based on several grounds which are independent of each other in law, the applicant, as appellant, must challenge all the grounds for dismissal in a manner which is sufficient in itself.
2) The exclusive jurisdiction pursuant to Art. 22 No. 2 of the Regulation relates solely to actions which have as their object the validity, nullity or dissolution of a company or the validity of the resolutions of its organs, but not to the internal liability of a GmbH managing director vis-à-vis the GmbH.
From a conflict of laws perspective, the liability of the managing director of the GmbH towards the GmbH is subject to the company law statute. The same applies to the assessment of his appointment as administrator.
Dismissal, shareholders' resolution, shareholders' meeting, damages, competition
Düsseldorf Higher Regional Court 2006
Culpa in contrahendo, settlement
OLG Saarbrücken 2006
1. claim for rescission of an arbitration settlement due to breach of pre-contractual duty of disclosure.
Extraordinary termination, competition, capital participation, extraordinary termination, capital participation, competitive activity
LAG Munich 2006
(1) The purely capital-related participation of an employee in the limited liability company of a company competing with the employer is also suitable under certain circumstances to justify an extraordinary dismissal by the employer.
Action for protection against dismissal of a GmbH managing director - suspended employment relationship
BAG 2006
(1) In case of doubt, the conclusion of a managing director service contract by a salaried employee constitutes the implied termination of the previous employment relationship. According to the intention of the contracting parties, an employment relationship should not regularly continue in a dormant state in addition to the employment relationship. A different interpretation is only possible in exceptional cases, for which there must at least be clear indications.
Interpretation of a continuation or takeover clause
OLG Karlsruhe 2006
As a rule, a continuation or takeover clause is to be interpreted to the effect that the remaining shareholder of a two-person company is entitled to a takeover right, but is not obliged to continue the company. This also applies in the event of extraordinary termination.
(2) A shareholder is not prevented by the earlier termination of the other shareholder from terminating the company in turn by ordinary notice. In this case, the company shall be dissolved after the expiry of the notice period.
Managing director, termination
OLG Frankfurt 2005
If the shareholders' meeting of a GmbH resolves to terminate the employment relationship of one of the two managing directors after the latter has been dismissed, it cannot be assumed without further ado that the remaining managing director has been granted a conclusive power of attorney to issue the declaration of termination.
Contribution in kind, hidden contribution in kind
Düsseldorf Higher Regional Court 2005
Health insurance, compulsory insurance, notice, company, pension insurance, shareholder, shareholders' meeting, unemployment insurance, appeal, social insurance, employment contract, remuneration, consent, employer, silent partner, atypical silent partnership, manner
LSG Saxony-Anhalt 2005
Severance claim, employment contract, termination agreement, complaint, managing director employment contract, insolvency claim
LAG Hamm 2005
Admissibility of an intervener's appeal Annulment of a contract of employment of a managing director
Employee, advertising, decision, employer, working time, appeal, appeal decision, company, specialist, integration, care, entrepreneurial risk, determination, work, first-instance decision, integration into the company, BSG case law
LSG Hamburg 2005
On the demarcation of a self-employed activity from a dependent employment in the case of shareholder-managers with a capital participation of 50 or 33% in a GmbH for advertising and design. In the case of a mixed activity consisting of several areas of activity, journalistic elements characterise the overall picture if the managing director carries out "strategic communication consulting", i.e. develops an overall concept for the client for presentation on the market and in public. It is also an activity in advertising if no advertising media, graphics or texts are produced by the managing directors themselves. The customer advisory service and customer care is to be assigned to this advertising activity. Commercial and organisational work is a necessary annex to the overall activity.
Taxation of a limited partner's share and determination of the goodwill of the KG
FG Düsseldorf 2004
When taxing the relinquishment of a limited partner's share, the fair market value of the shares in the general partner GmbH held as special business assets can be determined in accordance with A 4 et seq. VStR.
2. the capitalisation interest rate to be applied in determining the goodwill of the limited partnership may not include a risk premium exceeding 60% of the base interest rate, as otherwise the capitalisation factor would decrease irrespective of the conditions on the capital market and a sustainably achievable return would no longer be shown.
3. one-off transactions that are not expected to recur shall be excluded from the average income to be taken as a basis.
Prohibition of the use of a domain name
BAG 2004
Supervisory Board, court appointment
OLG Schleswig 2004
society, exclusion
BGH 2004
Provisions for the redemption of shares.
FG Hesse 2004
In the case of the redemption of shares of the withdrawing shareholder, the compensation payment represents a repatriation of share capital or earned assets of the corporation, which may not reduce the annual result.
Breach of contract, tax advisor, duty to inform, causality, grounds of appeal, legal argument
Düsseldorf Higher Regional Court 2003
(1) If a tax adviser provides tax advice to a company whose shareholders - recognisable to him - have founded another company abroad in the same business area which may compete with the parent company, the tax adviser is obliged to point out, at least in general terms, possible problems which may arise in connection with the taxation of the profits of the foreign company. However, the tax advisor is only obliged to carry out a detailed, conclusive examination, particularly in the case of complex circumstances, on the basis of a separate audit assignment.
If the client claims damages due to the assumption of a hidden profit distribution by the tax authorities and if the latter depends on criteria which the tax advisor could not have influenced even if he had given advice in accordance with his duty, the causality of a breach of duty existing at the time of the advice for the damage claimed is missing. This also applies if the missing effects of the breach of duty are based on the fact that the case law of the fiscal courts has changed between the breach of duty and the occurrence of the damage.
(3) The liable advisor must only place the client in the same position in terms of assets as he would have been in if he had acted dutifully; the injured party may not receive more by way of compensation than what he can demand according to the substantive legal situation. The calculation of the difference required for this presupposes a comparison of the total assets, in which all consequences of the damaging event are to be taken into account, which have occurred or are to be expected with probability up to the time of the last oral hearing.
Management Board, bonus
BGH 2003
FG Münster of 19.12.2003, 9 K 491/01 K, G, F
FG Münster 2003
Corporations: - Remuneration to company directors for management activities at sister companies as hidden profit distribution
FG Cologne 2002
(1) The exercise of a secondary activity with another company can lead to a hidden distribution of profits without a reduction of the salary at the employing company which initially employed the managing director if the secondary activity means that the labour owed is only provided to a reduced extent.
2) The salary adjustment in the fixed salary is not compensated by a waiver of bonuses by the managing director.
Unemployment benefit, approval, working time, appeal, shareholders' meeting, insurance obligation, unemployment insurance, notice, company, employer, remuneration, notice of objection, shareholder, employee, approval of unemployment benefit, economic risk, entitlement to unemployment benefit
LSG North Rhine-Westphalia 2001
GmbH managing director: Termination without notice of the employment relationship continuing after dismissal
BGH 2000
(1) A managing director who has been dismissed from his position as a member of a governing body and who has been released from his duties for the duration of the continuing employment relationship shall, as a matter of principle, disclose his earnings from other sources during this period of time of his own accord if he sues the company for payment of arrears of salary.
(2) If a company car is not provided to a managing director in connection with his position as a member of an executive body, but rather as part of his contract of employment for "unlimited private" use, the managing director who has been dismissed does not breach his official duties if he uses the vehicle for a permitted other professional activity during the remaining term of the contract of employment.
3. the important reason justifying the termination without notice of an expiring service contract of a managing director may be lacking if the company, for its part, acts in breach of contract and unlawfully towards the dismissed managing director, because it may then be reasonable for the company to be held to the service contract until its normal expiry.
Shareholder resolution, voting prohibition, managing director, dismissal, share, redemption
Düsseldorf Court of Appeal 2000
On the question whether a partner who leaves a liberal professional partnership in return for a severance payment may take clients with him - time limit of a client protection clause
BGH 2000
(1) If a partner leaves a self-employed partnership in return for payment of a settlement which is also intended to compensate for the value of the client base, the consequence of this, in the absence of any agreement to the contrary, is that the departing partner may not take the clients of the partnership with him but must leave them - for a maximum of two years - with his previous partners.
Client protection clauses which are agreed in the event of a partner leaving a liberal professional partnership contain a post-contractual non-competition clause which is sufficiently defined in terms of territory and subject matter. Insofar as such a clause exceeds the tolerable period of two years, this does not lead to the invalidity of the agreement, but merely results in the limitation of the client protection to a maximum of two years.
OLG Düsseldorf: Dividend-dependent bonus of a member of the management board/interpretation of a compensation clause in a termination agreement
Düsseldorf Higher Regional Court 1998
1. the agreement of a dividend-related bonus for members of the management board is permissible. However, the dividend may not be used as a basis for calculation to the extent that it is derived from the reversal of profit repayments.
2. on the interpretation of a compensation clause in a termination agreement of an employment relationship as a member of the management board with regard to a health and nursing care insurance allowance and a waiting allowance in favour of the member of the management board.
Unsuccessful challenge of a discharge resolution due to null and void annual financial statements
Cologne Higher Regional Court 1998
Distribution of consumer goods to military installations
Cologne Higher Regional Court 1996
GmbH: Termination of the employment contract of the managing director without notice
1995
Decisions on the cancellation or termination without notice of the employment contract of a GmbH managing director shall be taken by the shareholders' meeting; if a company is the sole shareholder of the GmbH, the decision shall be taken by the representative body of the parent company.
The unjustified resignation of the managing director regularly justifies the termination of the employment contract without notice. This applies in any case even if the contractual relationship ends in a few months anyway, but the company has arranged for the continuation of the management task by the managing director until that time.
If a managing director uses the remaining time of his activity until the expiry of his contract to build up a competing company, the GmbH cannot be expected to adhere to the employment contract with the managing director until its normal end.
BFH of 23.03.1995 IV R 94/93
BFH 1995
If the partner of a partnership or the partner-managing director of its general partner GmbH becomes active in the commercial branch of the partnership with the consent of the other partner(s), this does not result in a withdrawal from the partnership.
Shareholders' meeting, revocation, appointment of managing director, notice of termination, employment relationship, good cause, linkage, appointment to a governing body, service agreement, notice period, declaration of revocation
OLG Munich 1994
BGB-Gesellschaft; Disputes in the event of withdrawal from a two-person company
1992
(1) After the dissolution of a partnership under civil law, claims based on the partnership relationship can in principle only be asserted within the framework of a final settlement account.
2 The same shall apply in the event of the withdrawal of a partner from the partnership, even if the BGB partnership consists of only two persons and the other partner "continues the partnership" in accordance with the agreement.
(3) If, nevertheless, a partial claim to be included in the final invoice as a dependent invoice item is sued for, the unfounded claim for performance may contain a request for a declaratory judgment.
No duty of care for assets of a member of the management board with regard to the bank's profit skimming claim
1988
The duty of care for the assets of the member of the management board of an AG does not extend to an existing right of entry of the AG towards him.
(1) If the Bank has acted merely as a commission agent, a claim by the Bank against its Management Board for the surrender of the profit amounts cannot be based on section 667 of the German Civil Code. In this case, he did not obtain them from a transaction on behalf of the Bank, but in his capacity as a member of a group of persons which itself concluded its own transactions and in so doing merely engaged the Bank as an intermediary.
In this constellation, § 687 (2) sentence 1 in conjunction with § 681 sentence 2 and § 667 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) cannot be used as a basis for a claim, since the transactions from which the defendant generated the profits do not represent outside transactions, not only subjectively but also objectively with regard to him. In this case, however, a "right of subrogation" of the stock corporation pursuant to § 88, Subsection 2, Sentence 2, German Stock Corporation Act, could come into consideration.
(4) Even if the relationship of a member of the management board to the company as a whole is a fiduciary relationship, not every obligation arising on the basis of such a relationship or in connection with it falls without further ado within the scope of those obligations for the benefit of third parties, the breach of which gives rise to the tort of breach of trust.
(5) The duty of loyalty does not require the conclusion of prohibited transactions. If a transaction violates the prohibitions enunciated in Art. I No. 1 lit. c and d MRG 53, an omitted increase in assets would not constitute damage in the legal sense.
No application of the restrictions on post-contractual competition clauses applicable to vicarious agents to the managing director of a limited liability company (GmbH)
BGH 1984
Competition clauses between a GmbH and its managing director which restrict the latter's professional activities for the period after termination of the employment relationship are not subject to the restrictions of Sec. 74 (2) HGB applicable to vicarious agents.
BFH of 22.07.1982 IV R 111/79
BFH 1982
A deferred income item is to be formed for the obligation resulting from the payment of a settlement under the MühlStruG of 22 December 1971 to shut down the mill and not to resume mill operations for 30 years.
