In its ruling of June 30, 2022 (5 W 18/22), the Higher Regional Court of Frankfurt am Main made an important fundamental decision on the urgency of applying for a temporary injunction as a defence against the decision to withdraw shares in a limited liability company (GmbH).
In the underlying facts, the plaintiff was deprived of its GmbH share by the shareholders' meeting with the votes of the other two shareholders at the end of 2021 for good cause. In the same month, the two other co-shareholders transferred their shares to their children and jointly founded a new GmbH that provided the same services as the old GmbH. It was about four months later that the applicant then requested the old and new shareholders to take legal action against the new GmbH and applied for the temporary injunction after receiving no response.
The OLG now decided on the one hand that the challenge of the withdrawal resolution itself has no suspensive effect against the withdrawal: The remaining shareholders can therefore pass effective resolutions amending the articles of association and structure. Even a subsequent effectiveness of the action for defects in the resolution does not lead ex tunc to a nullity of the decisions made in the meantime with regard to the company.
For this reason, those affected can and should protect themselves from possible irreversible damage by means of an injunction. A reason for injunction is required pursuant to Section 935 of the German Code of Civil Procedure (ZPO), whereby it must be noted that if there is too much delay (such as the four months in this case), the urgency of the risk of impairment is refuted. In particular, the applicant could have recognized the potential risk with her legal counsel.