Austrian OGH: GmbH & Co KG – Action Against Company Insufficient

Sept 19, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) considered whether it is legally valid to annul the resolutions of shareholders in a GmbH & Co KG (limited liability company & limited partnership) when an action is brought solely against the company.

Several limited partners of the defendant GmbH & Co KG sought a declaration of nullity regarding eight resolutions passed at the shareholders' meeting. They contended that their votes had not been properly considered in the decision-making process and maintained that accurate vote counting would have led to different outcomes for the resolutions in question. The partnership agreement specified that actions challenging the validity of resolutions must be brought against the company itself.

The defendant and an intervener argued that the action ought to have included all co-shareholders, allowing for a consistent judgement that would establish legal certainty.

The court of first instance dismissed the claim on the grounds that not all shareholders were party to the proceedings. The Innsbruck, Tyrol, Higher Regional Court affirmed this decision. In declaratory actions regarding the validity of shareholder resolutions within a partnership, it is essential that all shareholders participate as joint litigants. Failure to do so would prevent the judgment from attaining full legal effect, potentially resulting in conflicting decisions and, effectively, the division of the partnership.

The OGH concurred with this view.

A provision in the partnership agreement stipulating that legal action may be taken against the company exclusively does not exempt the mandatory participation of all partners as required by law. Extending subjective legal effect contractually, or permitting arbitrary legal representation, is impermissible because the binding force of judgments is not subject to the discretion of the parties involved.

Further, the framework for contesting resolutions under limited liability company and stock corporation law does not extend to partnerships. The application of analogy is excluded, as this model was designed expressly for corporations with numerous, frequently anonymous, shareholders to provide legal certainty. In contrast, partnerships do not present the same necessity, and thus, no legal gap exists that would warrant such transference.

The practice of German case law permitting a binding effect under the law of obligations was not taken into consideration.

In declaratory proceedings regarding the validity of shareholder resolutions of a GmbH & Co KG, it is essential that all shareholders are included as either plaintiffs or defendants. Consequently, the appeal by the plaintiffs was dismissed.

OGH 6 Ob 29/24v (13 August 2025)