In a GmbH, minority shareholders often have a weaker position than majority shareholders. Provisions in the articles of association can further restrict their influence - sometimes unlawfully, sometimes with serious consequences. But what rights do minority shareholders have and how can they defend themselves against unfavourable provisions?
1. typical disadvantageous provisions in the articles of association
Some GmbH articles of association contain provisions that structurally weaken minority shareholders, for example through
- Restricted voting rights
→ E.g. provisions that give individual shareholders disproportionate voting weight. - High quorums for resolutions
→ If, for example, a majority of votes is required for fundamental decisions, which effectively excludes minorities. - Discriminatory profit distribution rules
→ Deviating profit distribution in favour of certain shareholders can lead to discrimination. - Difficult share transfers
→ Restrictions or pre-emptive rights in favour of majority shareholders make it more difficult to exit.
2. legal consequences of disadvantageous provisions in the articles of association
Not every disadvantageous provision is automatically invalid. The decisive factor is whether the provision violates mandatory law or company law principles. Possible legal consequences:
- Invalidity of individual clauses
→ Provisions that violate the GmbH Act or fiduciary duties may be null and void. - Possibilities of avoidance
→ Minority shareholders can contest resolutions that are based on inadmissible provisions of the articles of association. - Claims for damages
→ If a shareholder suffers economic damage as a result of discriminatory provisions in the articles of association, it may be possible to claim damages.
3. protection options for minority shareholders
- Examination of the articles of association before participation
→ Early identification of potential disadvantages can avoid long-term problems. - Invocation of fiduciary duties under company law
→ The shareholders are obliged to behave fairly and in the interests of the GmbH. - Going to court
→ If no amicable solution can be found, legal action may be possible. - Mediation or shareholder agreements
→ Negotiations or supplementary shareholder agreements can create practicable solutions.
Discriminatory provisions in the articles of association can significantly restrict minority shareholders. Whether these are valid depends on their legal admissibility. A close examination of the articles of association and, if necessary, legal action are essential to ensure fair participation conditions.
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