Dismissal of the managing director, BGH ruling of 16 July 2024 – II ZR 71/23

Guidelines of the BGH decision

A managing director of a GmbH who is not its shareholder is not authorised to challenge the resolution on his dismissal. A resolution on the dismissal of the managing director is not void because it was not passed by a competent body of the GmbH or because it violates a provision of the articles of association.

The case:

The II. Civil Senate of the Federal Court of Justice, which is responsible for corporate law, has ruled that the resolution to dismiss Martin Kind as managing director of Hannover 96 Management GmbH is valid.

The facts of the case

The sole shareholder of the defendant Hannover 96 Management GmbH is Hannoverscher Sportverein von 1896 e.V.. The plaintiff Martin Kind is entered in the commercial register as managing director of the defendant. According to the defendant’s articles of association, its supervisory board is responsible for appointing and dismissing the managing directors. In a so-called Hannover 96 agreement between Hannoverscher Sportverein von 1896 e.V., Hannover 96 GmbH & Co. KGaA and Hannover 96 Sales & Service GmbH & Co. KG stipulates that Hannoverscher Sportverein von 1896 e.V. may not amend, supplement or replace the articles of association of the defendant without the prior consent of Hannover 96 Sales & Service GmbH & Co. KG without the prior consent of Hannover 96 Sales & Service GmbH & Co.

In July 2022, the representatives of Hannoverscher Sportverein von 1896 e.V. passed a resolution at a shareholders’ meeting of the defendant to dismiss the plaintiff “with immediate effect for good cause by way of a resolution breaching the articles of association” of the defendant.

Course of the proceedings to date:

With his action against the defendant, the plaintiff is seeking a declaration that the dismissal resolution is invalid. The Hanover Regional Court upheld the action and ruled that the resolution was invalid. The Higher Regional Court of Celle dismissed the defendant’s appeal against this decision. The resolution was null and void pursuant to Section 241 No. 3 AktG because it was incompatible with the nature of the GmbH. It had not been passed by the defendant’s supervisory board and was therefore contrary to its competences, which in the particular circumstances of the dispute led to the resolution being null and void. The breach of authority did not consist of a breach of the defendant’s articles of association. Rather, there was also a breach of the Hannover 96 contract. In addition, the dismissal resolution was immoral and therefore void by analogy with § 241 no. 4 AktG. It was particularly contrary to good faith because the sole shareholder was aware of the commitment he had entered into in the Hanover 96 agreement and had deliberately circumvented the rules of authority laid down in the articles of association.

With the appeal allowed by the Senate (press release no. 41/2024 of 29 February 2024), the defendant continues to pursue its motion to dismiss the action.

Decision of the BGH:

The defendant’s appeal was successful. The Federal Court of Justice overturned the judgement of the Court of Appeal and dismissed the action. The resolution on the dismissal of the plaintiff as managing director of the defendant is not void.

The dismissal resolution was not incompatible with the nature of the GmbH and therefore not void pursuant to Section 241 No. 3 AktG. Only a violation of fundamental structural principles of GmbH law can justify the incompatibility of the resolution with the nature of the GmbH. This does not include provisions in the articles of association that authorise the optional supervisory board of the company to dismiss the managing director. Compliance with the so-called Hannover 96 Agreement is also not one of the fundamental structural principles of GmbH law. The dispute over the consequences of a breach of this agreement must be settled between the contracting parties.

The dismissal resolution is also not void pursuant to § 241 no. 4 AktG. Neither does the content of the resolution violate common decency nor does it constitute immoral damage to persons not entitled to contest the resolution. The mere violation of a provision in the articles of association makes a shareholder resolution contestable, but not immoral. Nor does the immorality of the resolution result from a breach of the Hannover 96 contract or from an overall assessment.

Finally, the decision of the Court of Appeal does not prove to be correct for other reasons either. Neither is the resolution on the dismissal of the managing director void under the aspect of a so-called status-establishing breach of the articles of association, nor can the plaintiff, who is not a shareholder of the defendant, invoke the defendant’s asserted breach of the articles of association in the context of an action for annulment.

16.07.2024