An action for performance or an injunction seeking to prescribe to a shareholder in general meetings not the exercise of the voting right in a particular manner, but nonetheless other conduct, is – just like an action for a declaratory judgment seeking to determine bindingly, for the future, a shareholder’s voting right in respect of certain matters to be voted on – in principle inadmissible (OGH 2 February 2022, 6 Ob 213/21y).
In proceedings concerning shareholder resolutions, the GmbH is always the party. This means that such proceedings (among other things for an injunction against the exercise of the voting right) between shareholders and members of the company’s bodies, among and against one another, are not to be admitted, even though in many cases these are not disputes with the GmbH but disputes between the shareholders, or possibly the members of the bodies. An alleged infringement of membership rights by resolutions that have already been passed cannot be contested by an action for an injunction brought by the shareholder against the managing director while disregarding the time-limited possibility of challenge provided for in § 41 GmbHG. Resolutions that may possibly be envisaged for the future cannot, in the absence of a claim granted by law to the individual shareholder against a fellow shareholder to exercise the voting right in a particular sense, be prevented by a preventive action for an injunction or by an interim injunction. Quite apart from the fact that the conditions for exclusion from the voting right may take a different shape in the future even for a specific adoption of a resolution, the exercise of the voting right as such would not be prevented, and the problem – which can only be resolved by means of an action for nullity brought by the one or the other shareholder disadvantaged by the determination of the voting result – of whether, in the specific case, the voting right had been granted or refused would once again merely be shifted. An action for performance or an injunction seeking to prescribe to a shareholder in the general meetings of the GmbH not the exercise of the voting right in a particular manner, but nonetheless other conduct, therefore proves – just like an action for a declaratory judgment seeking to determine bindingly and without any time restriction, for the future, a shareholder’s voting right in respect of certain matters to be voted on in general meetings of the GmbH – to be inadmissible as a matter of principle. In order to clarify the questions of whether the shareholders or the chair of the meeting acted lawfully in the general meeting, who was entitled to validly exercise, or did validly exercise, the voting right on which items subject to resolution, and which resolutions ultimately came about effectively, the time-limited action under §§ 41 f GmbHG is available.