A co-shareholder acts against company interests. Separate fiduciary duty, claimant, injunction, information and damage correctly.
Your shareholder dispute team
Dispute team for shareholders and managing directors
A shareholder dispute calls for corporate law, litigation strategy and commercial understanding from one team. Mag. Bernhard Brandauer is responsible for the legal advice; depending on the conflict, further specialised lawyers of the firm support safeguards, evidence, negotiations and court enforcement.
Contact the teamShareholder fiduciary duty protects the GmbH and the legitimate interests of co-shareholders. It is not a general obligation to accept every demand made by the other side. A dispute must identify the allegedly disloyal conduct, the person suffering the disadvantage and the remedy that actually addresses it.
Injunction, information and damages are not interchangeable labels. An injunction requires specified continuing or threatened conduct. Information requires a separate right to information or accounts. Damages require breach, loss, causation and fault in the hands of the proper claimant.
Already know you want to get in touch? Go straight to the enquiry form.
Secure the specific conduct, date, participants and recurrence risk. Frame the requested prohibition narrowly so that lawful conduct remains possible and assess suitable interim relief where urgent.
Replace general allegations with individual events. Define what must stop and which contractual or fiduciary duty supports that specific prohibition.
Separate company loss, direct personal loss and a mere fall in share value. Assign a claim, defendant, evidence and requested performance to each loss.
Review information rights, inspection, contractual disclosure and any duty to account first. Only then can compensable damage and its amount be assessed.
The Austrian Supreme Court derives shareholder fiduciary duty from good faith, fair dealing and public morality. It is owed to the company and co-shareholders. Its scope depends on the holding, influence, allocation of roles, contractual purpose and the specific risk.
A managing majority shareholder has different influence from a small minority shareholder without office. The greater the control over decisions or information, the more carefully company and co-shareholder interests must be considered.
The topic page on non-compete and fiduciary duty sets out common disputes. A claim must still derive a specific act, omission or duty to cooperate.
Fiduciary duty does not require a shareholder always to subordinate personal interests to those of the GmbH. The Supreme Court recognises self-interested membership rights that may in an individual case be exercised against company interests.
The boundary is crossed where the right is abused, legitimate interests are harmed without proper reason or the particular corporate relationship requires consideration. The analysis therefore needs the purpose, alternatives, benefit and disadvantage of the conduct.
A negative vote is not automatically disloyal. The case law requires appropriate regard for co-shareholder interests but does not replace corporate decision making with a free judicial review of business expediency.
An injunction may be appropriate where a co-shareholder poaches customers, uses confidential data, circumvents resolutions or takes a specific company opportunity. The prohibited conduct and asserted recurrence risk must be described precisely.
A broad order preventing every contact, all competition or every critical vote may also capture lawful conduct. Its substantive, temporal and personal scope must follow from the articles and the specific fiduciary duty.
For imminent irreversible measures, the article on preliminary injunctions against asset transfers is also relevant. The main claim, specific risk and requested protective measure must connect.
The Supreme Court recognises a broad shareholder information right against the GmbH. The company is generally the debtor of that right. This does not automatically create an equally broad personal disclosure claim against every co-shareholder.
Disclosure or accounts from a co-shareholder may follow from contract, agency, trust, competition breach or another special legal basis. The period, transactions and purpose of the requested information must be defined.
The article on enforcing information and inspection rights addresses the claim against the GmbH. That level must not be mixed with a damages claim against a co-shareholder.
Where GmbH assets are harmed or a company opportunity is taken, the damages claim generally belongs first to the company. A fall in share value or lower future distribution is often only reflective loss resulting from damage to the GmbH.
A personal claim requires direct interference with the co-shareholder’s own legal position, such as breach of a personal agreement or targeted violation of an individual membership right. The same economic disadvantage must not be recovered twice as company and personal loss.
If the majority prevents enforcement of a company claim, a minority action under section 48 GmbHG may be available. It seeks performance to the GmbH, not payment to the claimant shareholders.
The file starts with the articles, shareholders agreement, register extract, offices and holdings. The alleged events are then evidenced by emails, minutes, contracts, payment flows and witnesses.
A claim matrix links each event to the duty, claimant, defendant, remedy and evidence. It also identifies missing information and whether it must be requested from the GmbH or another person.
The safeguard triage helps where time, assets or evidence are at risk. Injunction, disclosure, accounts and damages should be legally separated and coordinated rather than pleaded as one undifferentiated package.
No. Personal membership interests remain legitimate. A vote may become disloyal where it harms legitimate company or co-shareholder interests without proper reason.
No. The broad shareholder information right is generally directed against the GmbH. A claim against the co-shareholder needs a special contractual or statutory basis.
That depends on the right directly infringed. For company loss the GmbH is generally the claimant. A shareholder needs a separate direct loss for a personal claim.
Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
Contact