Rulings on the Law of Shareholder Exclusion / Squeeze-out

Below you will find one of the most comprehensive and up-to-date collection of interesting judgments of recent years on the law of exclusion of a shareholder. 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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Severance payment

LG Munich I 2019

Comparable to the actio pro socio - an action for exclusion of the shareholder in the two-person GmbH is permissible.

 

Assertion of rights to information pursuant to § 51a (1) GmbHG not an important reason for exclusion

OLG Munich 2015

(1) In the case of de facto bifurcation of a company, there is no need for a formal shareholders' resolution regarding a motion for exclusion, in which the shareholder concerned also has no voting right. The filing of an action constitutes an implied shareholder resolution.

2 The exercise of the right to information pursuant to Sec. 51a (1) GmbHG does not constitute good cause for exclusion as a shareholder.

3. the exercise of an existing right of delegation to the supervisory board cannot justify the exclusion of the shareholder from the company.

 

Company, compensation, management, redemption, shareholders' meeting, knowledge, company law, action for rescission, time limit, breach of duty, fiduciary duty

OLG Jena 2015

 

Declaratory action, passive legitimation, ineffectiveness, shareholders' resolution, shareholders' meeting, commercial partnership, partnership agreement

OLG Stuttgart 2014

1. on the requirements, presentation and proof in connection with the question of passive legitimacy for an action for a declaration of the invalidity of resolutions adopted in the shareholders' meeting of a commercial partnership.

2. to join an existing limited partnership as general partner.

3. to exclude a partner from the limited partnership for good cause.

 

Procedural defect, reason for exclusion, withdrawals, articles of association, right to information, right of control, e-mail, right of inspection, participation, dismissal, withdrawal of power of representation

Cologne Higher Regional Court 2013

(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.

 

Exclusion, Important reason

LG Frankfurt a.M. 2013

(1) In the event of mutually realised exclusion facts, the only remedy is a claim for dissolution of the company pursuant to § 133 HGB. A mutual action for exclusion is therefore unsuccessful.

 

Pension insurance

LSG Lower Saxony-Bremen 2013

(1) The question of the existence of a dependent employment relationship in the case of cattle farmers who, in order to carry out their professional activities as limited partners, have formed a limited partnership and a limited liability company (GmbH) which performs the tasks of the general partner.

 

Dismissal of the sole shareholder-director of a two-tier GmbH for good cause

Stuttgart Higher Regional Court 2013

1. on the requirements for the dismissal of the sole shareholder-director of a two-tier GmbH for good cause.

(2) The consent of the minority shareholder to the resolution proposal to dismiss the majority shareholder managing director of the two-member GmbH for cause as well as to exclude him from the company for cause may be in breach of trust and thus void if the respective required cause is missing.

(3) If all votes cast on a resolution proposal at the shareholders' meeting of the GmbH are null and void, a resolution declaring that the proposal has been rejected cannot be set aside by means of an action for annulment.

 

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.

 

Arbitration proceedings due to the exclusion of a shareholder

LG Regensburg 2013

Pursuant to sec 1030 (1) sentence 1 ZPO, the subject matter of an arbitration agreement may in principle be pecuniary claims. Claims under company law are also included among the claims under property law, even if they are exclusion claims.

2. an arbitration agreement made in the articles of association must comply with minimum standards of the rule of law and the granting of legal protection. among other things, each shareholder must be informed of the arbitration proceedings and must at least be able to join the dispute as an intervening party. All shareholders must be able to participate in the selection of the arbitrators. Both of these are already not regulated under the arbitration agreement and are also not possible. If this is not the case, the arbitration clause is void and legal protection must be obtained before the state courts.

3. an arbitral tribunal cannot refer under § 281 ZPO or § 17 GVG, as a referral is only possible within the state courts. The question of jurisdiction is conclusively regulated in § 1040 ZPO. The arbitral tribunal can only react by decisions or orders.

 

Participation, shareholder, limited partner's share, shareholders' meeting, non-competition clause, approval

OLG Oldenburg 2013

 

Question of the affiliation of a shareholder: dispute resolution in proceedings with the co-shareholders

OLG Stuttgart 2012

(1) In a partnership under commercial law, the dispute as to whether a person belongs to the partnership, in particular whether the exclusion of the partner concerned was effective, cannot be settled with the partnership, but only in proceedings with the co-partners; such a dispute is to be settled by way of an action for a declaratory judgment pursuant to § 256 ZPO, not by way of an action for annulment of a resolution by analogy with provisions of stock corporation law.

 

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.

 

Unsuccessful appeal against non-admission - Restitution of shares in the administrative body

BVerwG 2012

(1) The principle of persuasion is infringed only if the Court of First Instance either fails to base its assessment of the facts and the evidence on the overall outcome of the proceedings but, in its legal opinion, disregards the contents of the file which are relevant to the decision or accepts facts which are contrary to the file, or if the conclusions it draws are contrary to the laws of reasoning.

2 A violation of the laws of reasoning only constitutes a violation of § 108.1 sentence 1 VwGO if it relates to the factual assessment and does not concern the legal subsumption.

(3) A court of fact has not already violated the laws of reasoning if, in the opinion of the complainant, it has drawn incorrect or remote conclusions. Rather, according to the facts of the case, only one conclusion may be possible under the law of reasoning, but the court did not draw it.

 

OHG, social security obligation, shareholder

SG Darmstadt 2012

The managing director of an oHG is self-employed and is not a dependent employee of the oHG.

2. whoever is authorized to represent the oHG according to § 126 HGB, has a right to vote in the partners' meeting and can only be excluded from the management and representation according to company law regulations, is a partner of the oHG. The consequence of this is the joint and several, personal, unlimited, direct and primary liability for the company's obligations according to § 128 HGB. This also applies if an entry as shareholder of the oHG has not been made in the commercial register.

 

Articles of association, shareholders, shareholders' meeting, good cause, shareholders' resolution, exclusion

OLG Hamm 2012

 

Shareholders' meeting, compensation, limited partner, rescission

LG Erfurt 2012

 

GmbH: Adoption of a resolution in the GmbH shareholders' meeting; necessity of a formal adoption of a resolution in a two-person GmbH in the case of exclusion of the voting rights of a co-shareholder due to self-involvement

OLG Celle 2012

 

Shareholders' meeting, redemption, shares

OLG Koblenz 2011

 

Shareholders' meeting, breach of trust, dismissal, power of representation, entry in the commercial register, shareholder

LG Cologne 2011

 

Reimbursement of shares held by the administration in a public insurance company;

OVG Lüneburg 2011

 

Withdrawal of a KG partner at the request of the other partners

BGH 2011

(1) If the partnership agreement of a limited partnership provides that a partner shall withdraw if the other partners - for good cause - demand his withdrawal by declaration vis-à-vis him, this clause shall be interpreted as a rule to the effect that the partners shall pass a resolution on the exclusion of a co-partner and, based thereon, shall issue a declaration of exclusion vis-à-vis him.

 

Exclusion of a limited partner

OLG Hamm 2009

 

Lack of convocation, partnership assets, partnership agreement

OLG Stuttgart 2009

 

Expulsion of a shareholder is ultima ratio

OLG Munich 2009

The possibility of excluding a shareholder pursuant to § 140 I HGB is to be considered only as ultima ratio. Only if there is an important reason within the meaning of § 133 I HGB and the assessment of all circumstances according to the principles of proportionality, including the behaviour of the other shareholders, does not open up any other possibility for action, exclusion is permissible as a last resort.

 

Company, takeover, franchise agreement, termination without notice, warning letter

OLG Hamburg 2009

 

Interest in declaratory judgment, membership relationship, need for legal protection

LG Hagen 2008

 

Limited partnership, shareholders' resolution, request for evidence, time limit, exclusion of shareholders, amortization, shares, good cause

LG Magdeburg 2008

 

Trading company, foreign company, place name, cancellation, appeal, opposition, European law

OLG Hamm 2008

The use of the name of a private limited company founded and registered in Great Britain for a company operating in Germany does not constitute unlawful company use even if the name of the company contains that of a German town, but a branch of the company has not been registered in Germany.

 

Limited partner's contribution, capital contribution, partners' meeting

LG Frankfurt/Oder 2008

 

Exclusion of shareholders, company, dissolution

OLG Naumburg 2008

 

Society, Farm

LG Coburg 2008

1. if the husband works on the farm of the wife's parents and a joint business relationship was maintained to the effect that all income from the agricultural business flowed into a joint fund, the property relationships in the individual case after termination of the cooperation are not to be assessed in accordance with the principles of the cessation of the basis of the business relationship; rather, a settlement is to be made in accordance with the rules of company law.

(2) This does not give rise to a claim to subsequent remuneration or a claim for restitution, but to a claim to a share in surpluses, savings or jointly acquired property and in losses.

 

Value in dispute, limited partnership, exclusion of a partner, limited partner

OLG Rostock 2007

The exclusion of a limited partner from the partnership is subject to strict requirements - since his relationship to the other partners is looser than that of the personally liable partners among each other - and is only justified if there is an important reason which makes it unreasonable for the other partners to continue with the person to be excluded.

2 In the case of alcoholism on the part of the limited partner, exclusion for reasons of illness is permissible in principle, but it must be assumed that essential tasks in the company can no longer be performed due to the illness.

(3) In this respect, exclusion is to be regarded as the ultima ratio and will generally only appear possible if a milder means of resolving the conflict is not available. Such a means can - for example - be the transfer of the limited partner's shares to a trustee.

 

BGB company, shareholders, shareholders' meeting, articles of association, defect, lawsuit, leasing, rent debts

OLG Brandenburg 2007

 

Dissolution of the company, fiduciary duty of shareholders, breaches of fiduciary duty

OLG Hamm 2007

 

Publishing business, daily newspaper, shareholders' meeting, redemption, shareholding

Düsseldorf Higher Regional Court 2007

 

Membership in an employers' association; legal succession; collective bargaining, textile industry, in-house collective agreement, employers' association, collective bargaining, legal succession, accrual, legal effect

ArbG Hagen 2007

 

Membership, employers' association, works council, contractual relationship

ArbG Hagen 2007

 

Shareholders' meeting, GmbH, limited partner, exclusion resolution, shareholder

LG Baden-Baden 2006

 

Articles of association, share, corporation, redemption resolution, shareholders' meeting

LG Dortmund 2006

 

Partnership, dissolution, exclusion, partner, partnership agreement, good cause, termination clause, exclusion clause, counterclaim

LG Hall 2006

 

important reason for termination, limited partnership, contractual agreement, perception of legitimate interests, capital account, immorality

Düsseldorf Higher Regional Court 2005

 

Reduction in validity of an unreasonable exclusion rule in the GbR examination period

OLG Frankfurt 2005

(1) A provision in a partnership agreement which grants a partner the right to exclude a co-shareholder from a partnership without good cause is contrary to public policy.

(2) This shall not apply if a new partner is admitted to a partnership or sole proprietorship and the sole purpose of the right of exclusion is to enable an examination to be made within a reasonable period of time as to whether the necessary trust can be established with the new partner and whether the partners can harmonise in the long term in the manner required for the joint practice of the profession.

3. an excessively long examination period must be reduced to a period of three years in order to preserve its validity.

 

Purchase price, participation, effectiveness, shareholders' meeting, ineffectiveness, reassignment

Duisburg Regional Court 2003

 

KG: Exclusion of shareholders due to gross violation of shareholder obligations

BGH 2001

(1) If the articles of association of a commercial partnership provide, in derogation of § 140 HGB, that the exclusion of a shareholder requires only a shareholders' resolution, the request for exclusion may not be pursued by way of an action.

(2) If three of five partners of a limited partnership are to be excluded, the partner seeking the exclusion shall require the consent of the fifth partner - if necessary by way of an action.

(3) A shareholder excluded by a resolution of the shareholders' meeting may have the invalidity of this decision determined by a court even if the other shareholders do not wish to derive any rights from the resolution "at present".

 

GmbH in liquidation: exclusion of a shareholder for good cause

OLG Frankfurt a.M. 2001

 

Modification of the action for exclusion in the limited partnership agreement

 2000

The GesV of a KG can effectively stipulate that the filing of an action for exclusion requires a prior shareholders' resolution.

 

Refusal of a necessary joinder of parties

BGH 1959

(1) Where a shareholder brings an action for a declaration that one of his co-partners has ceased to be a member of the company, there shall be no necessary joinder of the other shareholders in the action.

(2) If a shareholder has fraudulently induced the private creditor of another shareholder to obtain an attachment and transfer order against the latter in accordance with § 135 of the Commercial Code and to terminate the partnership, it constitutes an abuse of rights if the shareholder invokes the exclusion of the shareholder concerned in the contractually provided continuation of the partnership, although the private creditor has in the meantime been satisfied elsewhere and the attachment and transfer order has thus become irrelevant.

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