OLG Wien: Single Party in case of GmbH Manager Removal

Oct 27, 2023 Benn-Ibler Rechtsanwälte

The Oberlandesgericht Wien (Higher Regional Court, Vienna, hereinafter OLG Wien) has ruled that, in the case of the dismissal of a shareholder-director of a limited liability company (GmbH), both the director in question and the other shareholders withholding consent are a single party to the dispute.

In the original case, the plaintiff was the managing director and shareholder (30%) of a limited liability company (GmbH). The 1^st defendant is also a managing director and shareholder (20%). The other shareholders are the 2nd defendant (1 per cent) and the 3rd defendant (49 per cent).

The plaintiff requested the 2nd and 3rd defendants to agree to the dismissal of the 1st defendant as managing director. The 1st and 2nd defendants argued that the alleged grounds for dismissal did not exist. The 3rd defendant did not take part in the proceedings. As a result, the court of first instance issued a default judgment against the 3rd defendant, finding that he had consented to the dismissal of the 1st defendant as managing director and was liable to pay costs. The court of first instance held that there was no single party to the dispute on the side of the defendants and that the pleas of the 1st and 2nd defendants therefore had no effect on the 3rd defendant, which therefore put the pleas in default.

The OLG Wien disagrees:

The plaintiff is making two different claims: On the one hand, a claim for the withdrawal of the right to manage and represent the company and, on the other hand, a claim for the consent of the other partners to the dismissal. According to the OGH, in a partnership, the defendant seeking the dismissal and the partners refusing to give their consent constitute a necessary cooperation in the litigation.

According to the OLG Wien, this case law also applies to the dismissal of a managing director of a limited liability company.

The OLG Wien allowed the ordinary appeal, but the decision remained unchallenged.

OLG Wien 33 R 69/23v (17 July 2023)