The material status of shareholder was in dispute between two shareholders of a GmbH. After the shareholder-managing director had announced the submission of a list of shareholders in which the minority shareholder was no longer identified as a shareholder, the latter sued for injunctive relief against the submission of the incorrect list of shareholders.
The BGH confirmed the minority shareholder’s claim for injunctive relief. It is true that the shareholder is not entitled to a general claim for injunctive relief against the managing director on account of a breach of the managing director’s duties as a corporate body, because in principle there is no direct legal relationship between the shareholder and the managing director. As a corporate body, the managing director has a duty of loyalty to the company alone.
However, the BGH affirms a claim against the shareholder-managing director from the point of view of a breach of his duty of loyalty as a shareholder. Such a duty exists in the GmbH both between the company and its shareholders and among the co-shareholders. The present breach of duty by the shareholder-managing director represents an abuse of his power in order to enforce his own interests.
If these special conditions are not met, the disadvantaged shareholder is required to direct his claims for injunctive relief against the GmbH.