BGH on “reorganize or leave”

Unless otherwise provided for in the articles of association (e.g. through the redemption of shares), the withdrawal of a shareholder’s status is generally only possible with the consent of the shareholder concerned. Especially in crisis situations, a shareholder could thus develop a blocking potential in order to either prevent a restructuring or to participate in it without any risk of his own. Over the years, however, the German Federal Court of Justice (“Bundesgerichtshof“, “BGH“) has restricted these blockade possibilities by means of differentiated case law. These possibilities could also be useful in the current corona crisis, which is why they will be briefly presented in the following overview.

Firstly, in a ruling from 2009 (following the so-called “Girmes” ruling), the BGH decided with regard to corporations that shareholders act in breach of their duty of loyalty if they do not participate in any reorganisation obligations but wish to remain in the company. A shareholder is generally not obliged to agree to a change in the articles of association for the purpose of restructuring (here: so-called “capital cut”). However, in the opinion of the BGH, in particularly exceptional cases something different may result for each individual shareholder from the shareholder’s duty of loyalty. However, a duty of consent can only be considered if it is urgently required in view of the existing company relationship or the existing legal relationships between the shareholders and if the change in the articles is reasonable for the shareholder in consideration of his own interests. The obligation of an individual shareholder to agree to a necessary amendment of the articles can therefore only be accepted if the interests of the individual shareholder worthy of protection do not conflict with this. If, for example, an (economic) weighing of the consequences of the planned reorganisation measure shows that it is not reasonable for the “risk-willing” shareholders (who would be prepared to inject capital into the company) to continue the company with the shareholders not willing to invest further capital (“blockers”), the withdrawal of these blockers can be (en-)forced.

In 2011, the BGH then restricted this jurisdiction with regard to partnerships as follows: If the partnership agreement of a public partnership stipulates that a capital increase can only be resolved unanimously even in a crisis and if the failure to achieve unanimity means that the approving partners are entitled to increase their contributions while the non-approving partners have to accept a reduction in their participation, the partners who are unwilling to pay are not obliged to agree to a resolution that a partner who is unwilling to reorganise leaves the partnership out of a duty of loyalty. This decision was, however, based on the special constellation that the articles of association expressly contained provisions in the event of a corporate crisis.

It is true that the BGH, with express reference to the (rather general provisions of the) German Civil Code concerning the basic form of all corporations, had also rejected a requirement for the blockers to give their consent, which initially spoke against the assumption of a general corresponding duty of loyalty in the case of partnerships. In a decision from the year 2015, however, the BGH decided in this respect that the articles of association of a public partnership need not contain an express provision for the partner’s obligation to consent to his withdrawal from the fiduciary duty in exceptional cases, because this fiduciary duty is immanent to every partnership relationship without an express provision. However, the articles of association may contain regulations that further define this duty of loyalty either expressly or by way of interpretation, which in particular restrict the duty of approval for certain circumstances resulting from the duty of loyalty or make it subject to further conditions.

In summary, it can be stated that a partner / shareholder (irrespective of the concrete legal form) is obliged within the scope of his fiduciary duties to participate financially in necessary restructuring measures for the company or to accept his resignation – if no express (other) provision is made in the articles of association.

BGH, Urt. v. 9.6.2015 – II ZR 420/13 (“Sanieren oder Ausscheiden III”)
BGH, Urt. v. 25.01.2011 – II ZR 122/09 (“Sanieren oder Ausscheiden II”)
BGH, Urt. v. 19.10.2009 – II ZR 240/08 (“Sanieren oder Ausscheiden I”)
BGH, Urt. v. 20.03.1995 – II ZR 205/94 („Girmes“)
(All in German)

Leave a Comment