The exclusion of voting rights and the ban on voting rights are an important tactical instrument in shareholder disputes in a GmbH.
1. The importance of voting rights for the shareholders in a GmbH
In a limited liability company (GmbH), the right to vote is a central instrument for enforcing the will of the shareholders and exercising influence and control. Among other things, it enables the shareholders to vote on important company decisions and to lead the management.
However, in certain situations there may be an exclusion or ban on voting rights, especially in the case of a shareholder dispute.
Section 47 (4) of the GmbHG regulates individual disputed cases.
2. The terms exclusion of voting rights and ban on voting rights
A disqualification means that a shareholder is excluded from voting. This can happen due to conflicts of interest or other specific situations set out in the Articles of Association.
A ban on voting rights, on the other hand, is a stricter measure in which a shareholder is completely deprived of voting rights. This can happen because of serious violations of company obligations or because of actions that damage the company.
3. Section 47 (4) GmbHG as the “basic standard” for an exclusion or ban on voting rights
Section 47 (4) GmbHG regulates the exclusion of voting rights in certain cases.
The rule is:
“A shareholder who has a conflict of interest in the matter or who is subject to a non-competition clause in the matter is not entitled to vote in the resolution.“
This means that a shareholder is not entitled to vote if he has a personal interest in the matter that conflicts with the interests of the company or if he is subject to a non-competition clause.
Examples of disqualification and prohibition of voting rights include, but are not limited to:
a) Conflict of Interest
A typical example of a conflict of interest disqualification is when the corporation is voting on a contract from which a shareholder would benefit personally. In this case, the shareholder concerned can be excluded from the vote to ensure that the decision is taken in the best interests of the company.
b) Non-competition clause
A shareholder may also be barred from voting if subject to a non-competition clause. This is the case, for example, when the company is voting on a matter that is in direct competition with a company in which the shareholder has an interest.
c) Breach of corporate obligations
A ban on voting rights can also arise if a shareholder has seriously violated his duties as a shareholder. This is the case, for example, if the co-shareholder passed on confidential information to third parties or damaged the company in some other way.
4. Summary
The exclusion of voting rights and the ban on voting rights are important instruments for safeguarding the interests of a GmbH and for avoiding conflicts of interest. They enable the company to make decisions in the best interests of the company, even if it means a shareholder is barred from voting. Section 47 (4) GmbHG offers a clear legal framework and starting point for analogous application to comparable cases.
The instruments of the exclusion of voting rights or the ban on voting rights are to be used restrictively. They are used in those cases where there is a clear conflict of interest and/or a shareholder has breached his or her duties. Otherwise they could be seen as unfair or discriminatory and lead to further conflicts within society.
In any case, it is advisable to consult an experienced specialist lawyer for corporate law in the event of shareholder disputes or questions regarding voting rights. He can carry out a detailed analysis of the situation and propose a suitable strategy for solving the conflict.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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