In its ruling of 29 April 2014 (Az. II ZR 216/13), the BGH held that the exclusion of severance payments in the articles of association of a GmbH may be considered immoral, provided that no severance is to be paid in the event of a (gross) breach of the interests of the company or of the shareholder's duties.
In the underlying case, a shareholder holding 49.6% of the shares in a GmbH was excluded from the company at a shareholders' meeting. The meeting also resolved that good cause existed with respect to the person to be excluded, so that the exclusion was to be carried out without severance payment, and that the shares were therefore to be redeemed. In its decision, the Bundesgerichtshof (BGH) relies on § 241 Nr. 4 AktG, taking the legal view that the provision in the articles of association of the GmbH is immoral and therefore void. According to the court, it is one of the fundamental membership rights of a shareholder to receive an appropriate severance payment upon leaving the company. An exclusion of such severance is therefore immoral and only permissible in exceptional cases. After all, the shareholder has contributed to the value of their share through capital investment and, where applicable, personal work. Shareholder status must not then be lost without compensation for its value.
Frequently asked questions
Frequently asked questions
Are exclusions of severance compensation valid in GmbH articles of association?
Exclusions of severance compensation in GmbH articles of association are generally contrary to public policy and therefore void. In its ruling of 29 April 2014 (Az. II ZR 216/13), the BGH held that receiving adequate severance compensation upon leaving the company is a fundamental membership right of a shareholder. A complete exclusion of severance compensation is permissible only in exceptional cases.
Can a GmbH shareholder be excluded without compensation due to a breach of duty?
No, even in cases of a (gross) violation of the company's interests or the shareholder's duties, compensation cannot generally be excluded. The BGH classifies such articles of association provisions as immoral pursuant to § 241 Nr. 4 AktG. Through capital contributions and possibly active involvement, the shareholder has contributed to the value of the share and may not lose this position without financial compensation.
On what legal basis does the BGH ground the invalidity of a severance exclusion?
The BGH relies on § 241 No. 4 AktG, which is applied by analogy to the GmbH. Under this provision, resolutions and articles of association that violate public policy are void. An exclusion of severance payments is deemed contrary to public policy because it infringes upon the shareholder's fundamental membership rights.
What are the consequences of an unconscionable exclusion of severance compensation in a GmbH articles of association?
An unconscionable clause in the articles of association is void and has no legal effect. If a shareholder is excluded without compensation on the basis of such a clause, they can demand payment of an appropriate severance amount. GmbH shareholders should review their articles of association accordingly and amend them if necessary to avoid future disputes.