The exclusion action in a two-person GmbH

In a landmark ruling 70 years ago, the „Bundesgerichtshof“ (German Federal Court of Justice, hereinafter with the German abbreviation „BGH“) recognised for the first time the possibility of excluding a shareholder from the company by means of an action. Now, in the ruling of 11 July 2023 – II ZR 116/21 – the judges have once again addressed the exclusion action in a private limited company (hereinafter with the German abbreviation „GmbH“).

Starting point

The exclusion of a shareholder was and is not provided for as such under the provisions of the Act on Limited Liability Companies (hereinafter with the German abbreviation „GmbHG“). In its ruling of 1 April 1953 – II ZR 235/52 – the BGH recognised the possibility of an exclusion action against a shareholder of a GmbH for the first time. At the time, the judges derived the possibility of exclusion from the general principle that a legal relationship that strongly interferes with the life activities of the parties involved can be terminated prematurely if there is good cause.

The exclusion is to be implemented by a legally binding judgement. The plaintiff is the GmbH, the defendant is the shareholder to be excluded. In the view of the BGH, a ber should prevent the shareholder from losing his shareholder status without receiving compensation for his share in the company. The judgement was therefore subject to the condition that the shareholder concerned receives an equivalent value for his share from the GmbH within a reasonable period of time.

Bringing an action by way of actio pro socio

In principle, the parties to an exclusion action are the GmbH as the plaintiff and the shareholder to be excluded as the defendant. However, the question of whether this principle should also apply in a two-person GmbH has been discussed for many years. Particularly in a two-person GmbH, it would be obvious that one shareholder could exclude the other shareholder by way of an (so called) „actio pro socio“ for the GmbH by means of an action. The majority of legal literature was in favour of the possibility of a personal exclusion action by the shareholder against his co-partner. Other voices have doubted this.

The BGH has now endorsed the former – predominant – view in legal literature. The shareholder of a two-person GmbH can bring an action for exclusion under the conditions of an actio pro socio. This is justified by the basic idea of the actio pro socio. This consists of protecting the shareholders from impairment of the management if the shareholders assert claims arising from the duty of loyalty under company law. Even in the case of an action for exclusion, there is a risk that a dispute between the shareholders could have an impact on the management and therefore also on the implementation of the exclusion.

The effectiveness of the exclusion

In the further course of its new decision, the BGH then abandons its previously advocated „conditional solution“. The exclusion of the shareholder concerned now takes effect once the judgement becomes final. In its reasoning, the BGH refers to its case law on the redemption of a share in accordance with section 34 GmbHG. This is effective upon delivery of the corresponding redemption resolution to the shareholder concerned. The prerequisite is that the resolution is neither null and void nor declared null and void.

The judges do not fail to recognise the risk that the excluded shareholder loses his shareholder status and at the same time comes away empty-handed with his compensation claim. In order to prevent this, the BGH applies its case law on redemption to the exclusion of a shareholder. Personally liable for the compensation claim of the excluded shareholder are the remaining shareholders if they pursue it.

The capital protection pursuant to section 30 GmbHG also applies in the event of exclusion. The GmbH must be able to pay the settlement from its uncommitted assets. However, the remaining shareholders can undertake to provide the GmbH with sufficient capital to pay the compensation claim. The remaining shareholders can also make such a declaration during the court proceedings.

Conclusion

With its new decision, the BGH has eliminated the previously customary suspension period following a legally binding exclusion judgement. This is a relief for the remaining shareholders. The BGH’s reference to the fact that the remaining shareholders can also undertake to provide the GmbH with sufficient capitalisation during the court proceedings could be of considerable importance. These obligations are usually included in the redemption or exclusion resolution both in the case of redemptions and the exclusion of a shareholder. If this is „forgotten“, this often leads to the cancellation of the redemption and/or exclusion resolution. It may be possible to prevent this in future by means of a declaration by the remaining shareholders in the court proceedings. All parties involved should keep this in mind.

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Authors: Dr. Andreas Menkel, Constantin Dorschu