Client poaching and competing activities change the market position within weeks. The article shows warning letter and preliminary injunction.
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 teamWhen a co-shareholder approaches customers or a managing director competes, prompt and lawful evidence preservation matters. Delay can increase loss and weaken the urgency case for interim relief. Whether a non-compete obligation exists at all depends on role, contract, consent and the specific activity.
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Preserve lawfully available messages, offers and statements by affected customers. A warning should identify the specific conduct. Interim relief requires a credible claim, risk of repetition or first infringement and urgency.
List affected customers, dates, known offers and contract changes. Do not ask customers for scripted statements and avoid unlawful monitoring. A warning or court application needs a reliable factual basis.
For managing directors, section 24 GmbHG regulates the non-compete duty and possible consents. A contractual clause must be interpreted by subject, time and persons covered. Cease and desist, information and further remedies can then be assessed separately.
A shareholder without a managing director role is not automatically subject to the same statutory rule as section 24 GmbHG. Review the articles, shareholders agreement, fiduciary duty, influence on the company and the specific business opportunity.
Section 24 GmbHG contains a statutory non-compete rule for managing directors. It covers transactions in the GmbH business line for their own or another account and certain functions in competing businesses. Consent, knowledge at appointment and later withdrawal of consent can change the assessment.
Under section 24(4) GmbHG, the rights identified in subsection 3 expire three months after all supervisory board members or, if there is no supervisory board, the other managing directors learn of the relevant facts. They expire in any event five years after arising. The date of knowledge, relevant corporate office holders and accrual therefore require separate documentation.
A shareholder who is not a managing director is not subject to the same blanket rule merely because of the shareholding. The articles, the concrete fiduciary duty, influence and the GmbH business opportunity matter. The topic page on non-compete and fiduciary duty separates those legal bases and remedies.
Suitable evidence can include lawfully available customer correspondence, specific competing offers, CRM records, contract changes, company register data and witness accounts. General allegations or private movement profiles are not a sound basis. Each item should prove a particular act, person and date.
Interim relief requires defined protection and credible supporting facts. Delay can weaken urgency but does not cause an automatic loss of relief after an invented number of weeks. The guidance on interim relief in a shareholder dispute explains how the principal claim, risk and requested measure must align.
Section 389 of the Austrian Enforcement Act requires the requested order, its duration, the asserted claim and the supporting facts to be stated precisely. In a poaching case, the file should therefore identify the customer, the approach, its date, the offer and the connection with the company business line. An application seeking to prohibit every contact or all activity may be too broad.
Section 381 of the Austrian Enforcement Act permits protection of other claims where a change in the existing position could frustrate or seriously hinder enforcement, or where irreparable harm is threatened. The chronology should show when the company learned of the conduct, what has already happened and what specific next act is imminent.
Arrange the documents around that evidence chain. The topic page on non-compete and fiduciary duty, the article on injunctive relief against a co-shareholder and the guidance on a preliminary injunction address the related claim questions.
That depends on the legal basis, breach, causation and provable loss. Section 24 GmbHG provides specific remedies for managing director breaches.
The facts and legal basis should be reviewed promptly. Delay can increase loss, create evidence problems and weaken urgency, but it does not automatically end the claim after a fixed number of weeks.
No. Section 24 addresses managing directors. Contractual clauses and the scope of shareholder fiduciary duties require a separate review.
Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
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