The plaintiff, a shareholder of a GmbH, demands that the defendant managing director (defendant 1) and the company (defendant 2) refrain from submitting a materially incorrect list of shareholders.
Originally, the defendant's deceased husband was the sole shareholder and managing director of defendant 2. In his will, he stipulated that 80 % of the shares should be transferred to defendant 1 and 20 % to the plaintiff. After the testator's death, defendant 1 assigned 20 % of the shares to the plaintiff. Later, defendant 1 contested both the assignment and the will. Nevertheless, the list of shareholders was entered in the commercial register according to the shares specified in the will.
Later, the second defendant was appointed managing director. When the plaintiff requested the first defendant to convene an extraordinary general meeting two years later due to alleged serious breaches of duty, the defendant expressed doubts about his status as a shareholder. She questioned the validity of the assignment and claimed that the testator had been under a mistaken motive when granting the legacy to the plaintiff. Therefore, she announced the submission of a corrected list of shareholders, on which the plaintiff would no longer be listed as a shareholder.
The plaintiff successfully defended himself against the announced submission of the "corrected" shareholder list with a preliminary injunction. At the same time, he sought a similar judgment in the main proceedings. In the first instance, the Stade Regional Court ruled in his favor (case no. 8 O 53/20), and the Celle Higher Regional Court (case no. 9 U 1/21) confirmed this on appeal. The plaintiff is entitled to have the shareholder list, which no longer identifies him as a shareholder, not submitted. He can sue not only the company as a whole, but also the managing director personally for breach of his corporate duties. This is because the previous shareholder list was not incorrect, and the validity of the assignment is irrelevant, as there was no error of motive that would justify contesting the will.
The Federal Court of Justice, as a court of appeal, reached the same conclusion. However, it chose a different reasoning for deriving the claim. The managing director cannot be held liable in her corporate position as managing director, since no direct legal relationship exists between the shareholder and the managing director. According to Section 43 (2) of the Limited Liability Companies Act (GmbHG), the managing director is generally liable only to the company. However, the plaintiff can sue the first defendant in her capacity as a shareholder for breach of the duty of loyalty under company law. A claim for injunctive relief is therefore only conceivable if the managing director is also a shareholder. A shareholder-managing director violates his duty of loyalty if he exploits his position as managing director of a GmbH by submitting a materially incorrect list of shareholders in order to abusively pursue his own interests.
A duty of loyalty exists not only between the company and its shareholders, but also among the shareholders themselves. Submitting a materially inaccurate list of shareholders violates this duty of loyalty. Due to the negative legitimizing effect of Section 16 (1) of the German Limited Liability Companies Act (GmbHG), the shareholder cannot exercise any rights if they are not listed in the list of shareholders. They cannot participate in the decision-making and structure of the company. This affects the core of their membership rights.
The Federal Court of Justice considered that the self-serving nature of the defendant's motivation was that it only questioned the plaintiff's status as a shareholder when the plaintiff wanted to convene the extraordinary general meeting, which was intended to dismiss the defendant for good cause.
As a legal consequence for a breach of fiduciary duty, the company can demand restoration of the original condition as compensation under Sections 280 (1) and 249 (1) of the German Civil Code (BGB). Specifically, the shareholder can demand that the managing director submit the materially correct list of shareholders if the incorrect list has already been submitted. It is also possible to demand that the incorrect list be ceased to be submitted under Section 280 of the German Civil Code if – as in the present case – there is a risk of a first offense or a repetition.
office
Grugaplatz 2 (c/o Regus)
45131 Essen
Phone: +49 201 74960001
Email: office@turgerlegal.de
branches
Kurfürstendamm 195 (c/o Regus)
10707 Berlin
Phone: 030 46690580
Email: office@turgerlegal.de
Breite Straße 3 (c/o Signature by Regus)
40213 Düsseldorf
Email: office@turgerlegal.de
Mon. – Fri. 10:00 – 17:00
You need to load content from reCAPTCHA to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from Instagram. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from Google Maps. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from Google Maps. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from hCaptcha to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from reCAPTCHA to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from Turnstile. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More Information