The fiduciary duties of a GmbH shareholder as a point of attack in the context of a shareholder dispute.
1. The corporate law loyalty obligations in the GmbH
The fiduciary duties of a shareholder in a limited liability company (GmbH) are a central part of German GmbH company law. They are anchored in various legal norms and have been substantiated by numerous court decisions.
The fiduciary duties of a shareholder result primarily from the articles of association or the articles of association. It is a contractually specified obligation, which is also aimed at the subsequent GmbH shareholders.
The shareholder loyalty obligation derives from, among other things, the equal treatment requirement under company law, the capital maintenance provisions of Sections 30 et seq. GmbHG and the protective provisions of group law pursuant to Sections 291 et seq. AktG.
2. The scope of corporate fiduciary duties
Case law has specified the duties of loyalty of a GmbH shareholder in numerous decisions.
A central principle was established by the Federal Court of Justice (BGH) in its judgment of June 29, 1981 (Az. II ZR 178/80). According to this, every shareholder has to protect the interests of the company as part of his duty of loyalty and to take these interests into account when forming his will.
The duty of loyalty of a GmbH shareholder essentially includes the duty to consider the interests of the company and its fellow shareholders. This means that the shareholder must not place his own interests above the interests of the company. In particular, he may not conduct any business to the detriment of the company and must put his personal interests aside in the event of conflicts of interest.
Below are exemplary fiduciary duties of the shareholder:
A shareholder must not discredit the company to third parties; trade secrets and company internals must not be disclosed. be disclosed to third parties; When terminating or reclaiming an issued shareholder loan, a shareholder must take into account the interests of the company – and any financial difficulties that may arise; A majority shareholder must also take into account the interests of the minority shareholders when distributing and retaining the company’s profits; A majority shareholder may not dismiss a minority shareholder and managing director for minor breaches of duty and thus deplete him financially and in terms of liquidity; A shareholder may not bring about any resolutions that are against the interests or even to the detriment of the company and the co-partners; Every company is to actively participate in the realization of the company’s purpose obliged; A shareholder is subject to the capital maintenance obligation. the GmbH etc.
3. Consequences and legal consequences in the event of violations of the corporate law fiduciary duties
If a shareholder violates their fiduciary duties, this can have significant consequences. A violation can trigger civil liability claims by the company or the co-shareholders against the shareholder concerned. In individual cases, a serious violation of the duty of loyalty can even lead to the exclusion of the shareholder from the company.
Violations of the duty of loyalty can also have criminal consequences. For example, the violation of business and trade secrets can be punishable. Breach of trust according to § 266 StGB can also be considered if the shareholder violates his obligations to the detriment of the company.
The fiduciary duties of a GmbH shareholder are therefore of central importance for the functioning of the company. They serve to protect the company and the minority shareholders.
4. Conclusion
It is elementary and crucial for every GmbH shareholder to know and observe their fiduciary duties. Because in the event of a breach (even unconsciously) of the corporate law fiduciary duties, the deceptive security of the limited liability of a shareholder can generate unlimited and personal liability.
In the event of ambiguities or doubts, legal advice should be obtained from a competent lawyer at an early stage.
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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