A shareholder or managing director takes a specific GmbH business opportunity. Assess the opportunity, role, claim owner and evidence.
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 teamA valuable contract, property or customer project is offered to the GmbH. Shortly afterwards a shareholder or a related company takes the transaction. Whether this is a breach does not depend only on who signed the final contract. The origin and maturity of the opportunity, the role of the person and the GmbH’s actual ability to pursue it are decisive.
Section 24 GmbHG provides a statutory non-compete duty and specific remedies for managing directors. An ordinary shareholder requires a narrower assessment under shareholder fiduciary duty. A co-shareholder should therefore identify the proper claimant and the company’s loss before asserting personal lost profit.
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Secure the offer, internal referral, calculations, decision stage and later contract. Review office held, consents and company remedies including injunction, entry into the transaction or damages.
Create a chronology from first approach to completion. Show why the opportunity was attributable to the GmbH, which work had been done and whether the company could realistically pursue it.
Review the business line, existing activities, origin of the contact and company interest. Thematic proximity alone does not turn every private opportunity into a company opportunity.
Identify company data, employees, reports, financing contacts and costs that were used. Their use may raise separate injunction, surrender or damages issues.
Not every idea within the business line belongs automatically to the GmbH. The case law considers whether the shareholder learned of it through the corporate role, whether it was presented in that capacity or whether it was of special importance to the company.
The more developed the opportunity, the stronger the attribution. A defined offer, identified counterparty, specific terms, internal calculations and ongoing due diligence differ from general market awareness.
The topic page on non-compete and fiduciary duty organises the different duties. This article concerns appropriation of a specific transaction rather than a general prohibition on activity.
Section 24 GmbHG applies to managing directors. Without company consent they may not transact in the company’s business line for their own or a third party’s account and may not hold certain offices in competitors. The section provides specific company remedies.
An ordinary shareholder is not automatically subject to the same statutory non-compete duty. Fiduciary duty may nevertheless prevent appropriation of a developed company opportunity, especially where it arose from membership or company data were used. If the conflict becomes personal, the article on removing a managing director for cause explains how the resolution, good cause and court route interact.
The existing article on non-compete breaches and customer poaching addresses continuing competitive conduct. Appropriation of an opportunity instead focuses on one defined contract or asset.
The asserted opportunity must be commercially real. Review the offer, exclusivity, price, financing, required approvals, internal authority and GmbH capacity. An opportunity that the company could not lawfully or financially pursue is not readily treated as appropriated.
The actor cannot simply claim that the GmbH lacked interest after withholding decisive information from the competent body. A reliable waiver requires an informed decision by the proper persons without an impermissible conflict.
Internal project files, calculations, meeting notes, emails, bank confirmations and offers to the same counterparty are especially useful. Their origin and lawful access must remain documented.
Where the opportunity was taken from the GmbH, the immediate economic disadvantage generally lies with the company. A fall in share value is often only an indirect consequence. A co-shareholder cannot automatically claim all lost company profit as personal damage.
For a managing director’s breach of section 24, the company may claim damages or under the statutory conditions treat the transaction as concluded for its account. For third party transactions it may claim remuneration or assignment of the remuneration claim. Other shareholders require a separately identified legal basis.
If the majority blocks enforcement, the minority action under section 48 GmbHG may be relevant. The participation threshold, resolution history, company claim and one year period must all align.
An injunction must identify the prohibited conduct. A broad ban on every activity in the entire business line may exceed what is required. The contract, customer, project, data set or use of specified resources should be identified as precisely as possible.
A claim for information or accounts does not arise merely because a claimant wants to quantify damage. It needs a substantive legal basis and must identify the transactions or remuneration to be disclosed. A staged action does not replace a properly pleaded claim.
Where the opportunity or acquired asset is about to be transferred, interim relief may be required. The article on preliminary injunctions against asset transfers explains how the claim, risk and measure must connect.
For the specific rights in section 24(3), subsection 4 provides exclusion periods of three months from knowledge of all supervisory board members or, without a supervisory board, the other managing directors, and in any event five years from creation. This rule does not govern every fiduciary duty claim.
It is therefore necessary to record who knew which fact and when. Knowledge of any employee or shareholder is not automatically the knowledge of the persons identified by the statute.
A reliable file connects the original offer, internal work, authority, private acquisition structure, completion and economic advantage. Only then can injunction, entry, surrender, damages and potential claims against a related company be separated.
No. Origin, maturity, special importance, the person’s role and the company’s actual ability to pursue it must be assessed.
Not automatically. The GmbH is often the directly injured party. A personal claim requires a separate direct loss and proper legal basis.
No. Section 24 applies to managing directors. Ordinary shareholders are assessed under the articles and the specific scope of shareholder fiduciary duty.
Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
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