- An application for a preliminary injunction to secure a claim for the removal of a managing director who is also a shareholder can also be based on Section 381(2) of the Enforcement Act (EO), regardless of the special provision in Section 16(2) last sentence of the Limited Liability Companies Act (GmbHG).
- Pursuant to Section 381(2) EO, a preliminary injunction may be granted "to secure other claims" if it appears necessary to prevent imminent violence or to avert an impending irreparable loss.
- A compelling reason is generally to be assumed if, based on the circumstances of the individual case and balancing the interests of all shareholders, it is no longer reasonable for the other shareholders to allow the shareholder to remain in their position as managing director, because the continued activity of the managing director in question would significantly jeopardize the interests of the GmbH (RS0059403; RS0059623 [T1]).
- Shareholders must consider the interests of the company, as well as the personal interests of the other shareholders, to the extent required by the purpose of the company and the cooperation between shareholders. This principle also applies to managing directors who are shareholders (6 Ob 63/03p). In a "person-oriented" capital company (in this case, a "family-owned GmbH"), personal circumstances must also be taken into account (6 Ob 63/03p).
- While personal animosities or family disputes do not, as a rule, constitute a compelling reason for the withdrawal of management authority (6 Ob 55/20m). Serious insults and physical altercations against fellow shareholders or their relatives can, however, constitute a compelling reason, provided that a consensual pursuit of the company's purpose can no longer be expected due to a destroyed basis of trust between the shareholders.
- Note: In this case, the court had established that the respondent had committed serious insults and physical altercations, which occurred almost exclusively on the hotel premises and in connection with the operation of the GmbH's hotel; this included a "most massive" crossing of boundaries that had led to a court-ordered restraining order as well as a (non-final) criminal conviction for coercion. However, even the aforementioned preliminary injunction did not lead to any lasting change in the respondent's behavior. Rather, the respondent violated the restraining order in connection with a dispute over the handover of accounting documents. Most recently, the respondent insulted the applicant in connection with a dispute over hotel pricing. The respondent also failed to adhere to his commitment to stay away from the hotel building during the applicant's pre-announced visits and to ensure the proper functioning of the remote connection so that the applicant could perform her work for the hotel GmbH from her home office.
- Due to the repeated incidents occurring over a longer period of time, as well as the respondent's obvious inability to change his behavior in a lasting manner, a consensual pursuit of the company's purpose can no longer be expected due to the destroyed basis of trust between the parties as shareholder-managing directors. The respondent's management authority was withdrawn to prevent imminent violence
Supreme Court (OGH) 3.7.2025, 6 Ob 97/25w, ecolex 2026/72 = GES 2025, 273
