Attorneys for German Corporate Law in Munich

Facts: A fierce shareholder dispute erupted in a corporate group for medical diagnostics (Munich). The plaintiffs (including a dismissed managing director and the company itself) attempted to dismiss two further managing directors (the defendants) for an important reason via shareholder resolution. However, the articles of association of the GmbH contained a clause stating that resolutions do not become effective if a shareholder objects within 24 hours. The defendants filed an objection. The plaintiffs then applied for a preliminary injunction to immediately prohibit the defendants from managing the business and to gain access.

Key Norms:

• Sec. 38 GmbHG: Dismissal of managing directors (Here modified by the articles of association).
• Sec. 47 GmbHG: Voting bans (The court ruled that a voting ban due to a conflict of interest does not automatically override a shareholder's contractual right of objection against the preliminary validity of a resolution).
• Sec. 253 ZPO: Specificity of statements of claim (Requests such as "must not hinder the management" are too vague and inadmissible).

Decision: The German Higher Regional Court (OLG) Munich dismissed the appeal and declined to issue a preliminary injunction. The court justified this as follows: 1. Clause in articles of association is effective: Due to the right of objection in the articles of association, the dismissal resolutions are not yet effective. The defendants formally remain in office until a main proceeding reaches a final decision. 2. No grounds for injunction: An "important reason" for dismissal is not sufficient to prohibit a sitting managing director from working via preliminary proceedings. "Most severe economic impacts" (threat to existence) or serious criminal offenses must be made credible. The plaintiffs failed to do this (vague claims about revenue declines were not sufficient). 3. No horizontal claim: A managing director has no direct claim against another managing director for an injunction.

Conclusion: Clauses in the articles of association that grant shareholders a right of objection ("veto") against resolutions can effectively block the quick dismissal of managing directors. The path via preliminary injunctive relief is then de facto blocked as long as the immediate ruin of the company is not imminent.