A vote cast contrary to a voting right commitment is also valid if all shareholders have entered into a voting right commitment. As long as a shareholders’ resolution does not violate a mandatory statutory allocation of powers, it is contestable but not void.
Facts
The facts underlying the decision concerned the dismissal of the disgraced managing director of Hannover 96 Management GmbH (“GmbH”). The GmbH’s articles of association expressly stipulated that the authority to dismiss the managing director did not lie with the shareholders’ meeting, but with an optionally established supervisory board. In addition, the sole shareholder of the GmbH undertook to a third-party company in the context of a voting agreement not to change the articles of association or to do so without the company’s prior written consent. According to the agreement, this applies in particular to the passage that regulates the function and composition of the supervisory board.
The sole shareholder ignored this and passed a resolution – which explicitly violated the articles of association – to dismiss the company’s managing director with immediate effect. The Hanover Regional Court granted the managing director’s application in the interim injunction proceedings to be allowed to continue his duties as managing director until the decision on the main issue was made. The Celle Higher Regional Court agreed with the Hanover Regional Court and deemed the shareholders’ meeting’s dismissal resolution to be null and void. The defendant appealed against this decision to the Federal Court of Justice.
Judgment of the Federal Court of Justice of 16 July 2024 – II ZR 71/23
The defendant’s appeal was successful. The Federal Court of Justice considered the decision to dismiss the plaintiff as managing director of the defendant to be valid.
Contrary to the opinion of the Celle Higher Regional Court, the dismissal resolution is not incompatible with the nature of the GmbH and is therefore not void in accordance with Section 241 No. 3 AktG. In contrast to a violation of the law or the articles of association, on the basis of which a resolution of the shareholders’ meeting can be contested, only a violation of fundamental structural principles of GmbH law can justify an incompatibility of the resolution with the nature of the GmbH. The nature of the GmbH does not arise from the individual articles of association of the company in question, because the nature of the GmbH is determined by the GmbHG and the abstract-general structural features of GmbH law and is therefore not at the discretion of the shareholders. These abstract-general structural features also include the autonomy of the articles of association, but this must not be confused with the specific articles of association provisions made in the exercise of this autonomy. According to the BGH, provisions in the articles of association which grant the company’s optional supervisory board the authority to dismiss the managing director do not constitute fundamental structural principles of GmbH law, since the authority to dismiss is reserved by law to the general meeting of shareholders (Sections 45 (2) and 46 (5) GmbHG).
The disregard of the provisions of the voting agreement does not justify the assumption that the dismissal resolution is incompatible with the nature of the GmbH. Compliance with such voting agreements is not one of the fundamental structural principles of GmbH law. Although shareholders of a GmbH can commit to a certain vote at any time, this agreement is fundamentally only binding on the contractual partner due to the distinction between the level of obligations and the level of corporate law, so that the consequences of a violation do not have to be borne by the company.
The BGH further assumes that the dismissal resolution is not void due to a violation of morality. For this to be the case, the resolution must be contrary to morality “considered on its own”. Resolutions in which it is not the actual content of the resolution but “only” the motive or purpose that violates morality, or in which the immorality lies in the way in which it was made, are only contestable.
The invalidity of the dismissal decision due to immoral damage could only be considered if the shareholders’ conduct had not been limited to the breach of authority and contractual obligations, but if there were additional circumstances that made it objectionable. However, the appeal court had not found such circumstances in the specific case.
Conclusion
Voting agreements are a common means of ensuring uniform voting by all shareholders or a group of shareholders. In pool agreements, which are particularly common in family companies, the parties agree to exercise their voting rights in a certain way. According to a controversial but prevailing view, such an agreement can also be concluded with third parties.
If a shareholder violates a voting agreement, his vote is generally valid at the shareholders’ meeting. The binding effect is limited to the contractual relationship between the parties and does not affect the external relationship. After the Celle Higher Regional Court partially softened this principle, the Federal Court of Justice emphasized with welcome clarity that a distinction must be made between the level of contractual law and the level of corporate law and that a breach of contractual duty does not have a direct impact on the partnership relationship. The contractual partners therefore generally only have the option of enforcing the contractually agreed vote against the shareholder who violated the agreement in court. Whether the voting behavior contrary to the contract is immoral and the resolution is therefore contestable or even void, and the action should therefore be directed against the company itself, is always a question of the individual case.
(BGH, judgment of 16 July 2024, II ZR 71/23)
