The Higher Regional Court of Brandenburg ruled that actio pro socio as a subsidiary right of action is only permissible if the company itself does not pursue any claims against the managing director or shareholder and the legal instruments fail. In the event of inaction on the part of the executive bodies, the possibilities for influence provided for in the GmbHG must first be exhausted. If the company can easily assert the claims itself, actio pro socio does not apply.

This applies in particular in a two-tier limited liability company (GmbH) if the shareholder concerned is subject to a voting ban (Section 47 (4) sentence 2 GmbHG). In this case, no shareholder resolution is required, so that a resolution requirement under Section 46 No. 8 GmbHG would be a superfluous formality. The remaining shareholder with voting rights can represent the company in the proceedings or appoint a legal representative.