Pursuant to Section 39 (4) GmbHG, individual shareholders may be subject to voting bans on certain resolutions. For example, a shareholder is deprived of the right to vote on resolutions that release them from an obligation or confer a benefit on them. Accordingly, a shareholder may not, for example, participate in the adoption of a resolution on the assertion of claims for compensation by the company against the shareholder concerned. The law thus takes account of the obvious conflict of interest in such situations.
In practice, the question often arises – particularly in disputes between shareholders – as to how resolutions are to be assessed in which shareholders who are actually subject to a voting ban have voted. This also has significance for the choice of legal remedy to be used against a resolution. The chairman of the general meeting has a decisive role to play here.
The case law
In older decisions, the Supreme Court took the view that a vote cast contrary to a voting prohibition was generally valid, but that the resolution could be contested (see Supreme Court, SZ 58/88).
The Supreme Court later departed from this view and stated in two decisions (4 Ob 7/92 and 9 ObA 358/98g) that the resolution can be passed by a majority of the remaining shareholders and that such resolutions are not objectionable.
It is surprising that in a subsequent decision (6 Ob 53/06x) the Supreme Court again followed the old line of case law. Fantur convincingly argues that the unexpected reversal was only due to the fact that the decisions 4 Ob 7/92 and 9 ObA 358/98g were overlooked. He justifies this by the fact that – in contrast to the original decision – these were not mentioned and reference was also made to an outdated edition of a commentary, which in the new edition welcomes the view of the Supreme Court in the decisions 4 Ob 7/92 and 9 ObA 358/98g (Fantur in GES 2018/6, 269).
The latest decisions also leave room for interpretation:
In 6 Ob 88/13d, the Supreme Court states:
“If a shareholder who is excluded from voting rights has participated in a resolution at the company’s general meeting and their vote was taken into account in the resolution, the vote is not invalid, but is a contestable resolution”.
In 6 Ob 213/16s, the Supreme Court states:
“According to established case law, if a shareholder who is excluded from voting rights participates in a resolution at the company’s general meeting and their vote is taken into account in the resolution, this constitutes a contestable resolution.”
According to Fantur, a vote can only be “taken into account” by a chairperson. If there is no chairperson, neither “something can be taken into account” nor something “cannot be taken into account” (Fantur in GES 2018/6, 270). Therefore, if there is no chairman, the votes cast contrary to the voting prohibition are invalid in Fantur’s opinion. However, if the chairman nevertheless counts them and determines them accordingly, they are provisionally valid.
Literature
Although Fantur’s legal opinion is quite plausible, it should not be concealed at this point that different opinions are held in the literature.
Enzinger, for example, states that a chairman is not even authorized to exclude a shareholder from the vote if the prohibition on voting is evident (Enzinger in Straube/Ratka/Rauter, WK GmbHG § 29 Rz 13).
Conclusion and practical tip
Depending on which view is followed, different results are reached and different legal remedies must be taken accordingly.
If one follows Fantur’s view, a resolution passed contrary to a voting ban is invalid unless a resolution is adopted by the chairman or there is no chairman at all. The invalidity would have to be asserted by means of an action for declaratory judgment. Of course, a positive action for declaratory judgment would also be possible, with which the passing of a resolution that would not have been passed if an invalid vote had been counted, but would have been passed without it, can be established.
If the opposite view is taken, the vote – which was cast improperly – would also be counted if the result of the resolution was not determined by the chairman or in a general meeting without a chairman and the resolution would therefore be valid and merely contestable. An action for annulment would therefore be required to deny its legal existence. In this respect, a judgment upholding the action for rescission would have a legally formative (and not merely declaratory) effect.
Unanimity prevails when the result of the resolution is determined by a chairperson. The resolution is valid for the time being and must be contested.
However, it should be expressly pointed out that in this presentation it was not discussed whether the determination of the resolution can also be absolutely null and void in the event of an abusive chairmanship, so that an action for declaratory judgment would have to be brought.
In view of this and also in view of the disagreement in doctrine and (possibly also) case law, it is therefore advisable to resort to the formulation of a contingent claim when bringing an action.