Decision of the OLG München on the removal of a GmbH managing director
The OLG München (Oberlandesgericht München, Munich Higher Regional Court), by decision of 10 August 2026 – 7 W 1058/26e – addressed key issues relating to the removal of a managing director in a GmbH (Gesellschaft mit beschränkter Haftung, German limited liability company). The focus was on the quorum of a shareholders’ meeting, the challengeability of a removal resolution adopted there, and the consequences for the GmbH’s capacity to conduct legal proceedings (Prozessfähigkeit).
According to the decision, a resolution on the removal of a managing director adopted at a shareholders’ meeting lacking a quorum is not automatically void. Rather, it may merely be voidable and remain provisionally effective until it is declared void by a final and binding judgment. In the case at hand, a decisive factor was, among other things, that the resolution had been declared adopted by the appointed chair of the meeting.
The decision had already been published on 14 August 2026 as a headnote notice in a specialist publishing service and was later published in the NZG. In case-law databases, the subject matter of the proceedings is recorded, among other things, under the keywords shareholders’ meeting, quorum, removal of managing director, challengeability of resolutions, capacity of the GmbH to conduct legal proceedings, authority to represent, and interim injunction.
Facts: Dispute over representation and management of a GmbH
Corporate structure and provisions in the articles of association
The applicant was a GmbH under German law. Four shareholders each held a 25 percent interest in it. At least until 7 July 2026, one managing director was the sole managing director of the company and authorised to represent it alone.
The GmbH’s articles of association contained, among other things, the following requirements:
- A shareholders’ meeting had a quorum only if at least 75 percent of the share capital was represented.
- If the level of attendance was lower, a new shareholders’ meeting with the same agenda had to be convened without delay.
- This follow-up meeting had a quorum irrespective of the votes represented if this was pointed out in the invitation.
- The appointment and removal of a managing director required a qualified majority of 75 percent of the votes cast.
- A specific shareholder was designated by the articles of association as chair of the meeting; in that shareholder’s absence, the shareholders’ meeting was to elect the chair of the meeting by simple majority.
In addition, the articles of association allowed shareholders to be represented or accompanied only by another shareholder or by an authorised representative bound by professional confidentiality. The power of attorney had to be in written form.
Shareholders’ meeting of 7 July 2026
On 7 July 2026, a shareholders’ meeting of the GmbH took place. Defects in the notice convening the meeting were not alleged in this respect. The announced agenda included, among other things, the removal of the previous managing director for cause and the appointment of the respondent as the new managing director.
No shareholder was personally present. Only two shareholders were represented, so that 50 percent of the shares were represented. No other persons participated.
The representative of one shareholder pointed out that the shareholder represented by him was designated in the articles of association as chair of the meeting. As a precautionary measure, he also had the representatives present vote on his own appointment as chair of the meeting. It was then recorded in the minutes that the failure of two shareholders to appear should be regarded as a boycott in breach of fiduciary duties and therefore should not be treated as absence.
The chair of the meeting determined that there was a quorum. Votes were then taken, among other things, on the removal of the previous managing director and the appointment of the respondent as managing director. The representatives present voted in favour of the resolutions in each case. The chair of the meeting declared in each case that the resolutions had been adopted.
Prior and parallel interim proceedings
The events had already been the subject of interim injunction proceedings before the LG München II (Landgericht München II, Munich II Regional Court). In those proceedings, the GmbH, represented by the respondent concerned here, sought an order against the previous managing director prohibiting him from carrying out further management activities. By order of 10 July 2026, confirmed by judgment of 20 July 2026, the LG München II prohibited him, on an interim basis until 24 July 2026, from carrying out management or representation acts for the GmbH.
In the proceedings now decided, by contrast, the GmbH, represented by the previous managing director, proceeded against the respondent. By way of an interim injunction, it sought an order prohibiting the respondent from carrying out management activities.
The Landgericht (Regional Court) refused to issue the interim injunction. It took the view that, in the proceedings, the GmbH was not validly represented by the previous managing director as a corporate organ and therefore lacked the capacity to conduct the proceedings. The GmbH lodged an appeal against this decision.
On 24 July 2026, a further shareholders’ meeting took place. All shareholders were represented there by lawyers. Although the minutes prepared by the lawyers differed from one another in detail, they were consistent with regard to attendance and the information on the adoption and declaration of resolutions.
By order of 31 July 2026, the LG München II issued an interim injunction in another proceeding at the request of the previous managing director, which in substance prohibited the GmbH from treating the respondent as managing director. The Regional Court dismissed the further application to continue treating the previous managing director, on an interim basis, as managing director.
Decision of the OLG München: Appeal unsuccessful
Admissibility of the appeal despite dispute over capacity to conduct proceedings
The OLG München considered the appeal admissible. At the admissibility stage, it was not decisive whether the GmbH was validly represented by the previous managing director for the purposes of its capacity to conduct the proceedings.
According to case law, where there is a dispute about a party’s capacity to conduct proceedings, the party is initially deemed to have such capacity until the defect is established. It may therefore also lodge an appeal. The question of the capacity to conduct proceedings must then be examined ex officio by the appellate court when assessing the merits.
At the same time, the OLG München found that the GmbH was validly represented by lawyers. The power of attorney submitted had already been granted on 6 July 2026 by the managing director who was at that time authorised to represent the company alone. Subsequent changes to his authority to represent did not affect the effectiveness of this litigation power of attorney under the legal principle reflected in §§ 168 sentence 1, 672 BGB (Bürgerliches Gesetzbuch, German Civil Code). No revocation of the power of attorney had been pleaded.
No other pending proceedings
The OLG München rejected the existence of other pending proceedings on the basis of the prior interim proceedings. Although the proceedings concerned the same set of facts, namely the shareholders’ meeting of 7 July 2026, the subject matter of the present proceedings was the resolved appointment of the respondent as managing director, whereas the other proceedings concerned the removal of the previous managing director.
Accordingly, there were different shareholder resolutions and different subject matters in dispute. In addition, there was no identity of parties because the proceedings were directed against different participants.
Lack of quorum at the shareholders’ meeting
Only 50 percent of the shares represented
The OLG München first found that the shareholders’ meeting of 7 July 2026 lacked a quorum. Under the articles of association, at least 75 percent of the share capital had to be represented. In fact, only two shareholders were represented by lawyers, i.e. only 50 percent of the shares.
The absence of the two additional shareholders could not be substituted by treating their failure to attend as a boycott in breach of fiduciary duties. It is true that, in the abstract, cases may be conceivable in which the failure of shareholders to attend, resulting in the absence of a quorum, justifies a deemed presence under fiduciary-duty considerations. In the specific case, however, the OLG München rejected this.
Follow-up meeting without quorum as decisive aspect
The decisive factor was that the articles of association provided for a follow-up meeting to be convened without delay in the event of the absence of a quorum. If the invitation contained a corresponding notice, that meeting was to have a quorum irrespective of the number of votes represented.
In these circumstances, a shareholder who stayed away was entitled to rely on a follow-up meeting being held if necessary. At the same time, the company’s internal decision-making process was not unreasonably delayed by the absence of individual shareholders. The OLG München therefore did not consider the absence to constitute a breach of fiduciary duty capable of justifying deemed presence.
The headnote version emphasises this connection: the failure of shareholders to attend does not give rise to deemed presence if the articles of association provide for a follow-up meeting without a quorum requirement in the event that no quorum is present.
Challengeability rather than nullity of the removal resolution
External elements of a shareholder resolution were present
Despite the absence of a quorum, the OLG München did not assume that the removal resolution was void. In the Senate’s view, the external elements of a shareholder resolution were present.
The representatives of two shareholders had come together at a shareholders’ meeting on the basis of a corresponding invitation. They voted on the agenda item concerning the removal of the previous managing director. A resolution process had therefore taken place.
Lack of quorum generally results only in challengeability
According to the decision, the absence of a quorum at the meeting did not render the removal resolution nevertheless adopted void. It merely made the resolution voidable. The Senate thus aligned itself with the general view that resolutions contrary to the articles of association are, as a rule, voidable and not void.
The OLG München also saw no reason to depart from this because of the particular provisions of the articles of association. If a meeting lacking a quorum or its chair were generally denied the ability to declare resolutions adopted, this would in effect lead to such a resolution being treated as void. In the Senate’s view, this could not be justified either by analogy with §§ 241 et seq. AktG (Aktiengesetz, German Stock Corporation Act) or with §§ 110 et seq. HGB (Handelsgesetzbuch, German Commercial Code).
The additionally published specialist publisher’s summary emphasises that nullity was excluded precisely also because the articles of association provided for a follow-up meeting without a quorum requirement.
Declaration of the resolution by the appointed chair of the meeting
Chairing of the meeting based on a provision in the articles of association
According to the OLG München, the provisional effectiveness of the removal resolution depended decisively on the resolution having been declared adopted by the appointed chair of the meeting. Under the articles of association, a specific shareholder was designated as chair of the meeting; only in that shareholder’s absence was a chair to be elected.
The relevant shareholder was not personally present, but was represented by an authorised representative permitted under the articles of association. Since the articles of association expressly allowed representation by a person bound by confidentiality and, with regard to quorum, referred to represented shares, the OLG München interpreted the provision on chairing the meeting to mean that the representative could perform the function of chair of the meeting.
Authority to declare resolutions despite absence of an express provision in the articles of association
The articles of association did not contain any express provision on the chair’s authority to declare resolutions adopted. However, they also did not deny the chair this authority. In addition, a challenge period provided for in the articles of association indicated that, when drafting the articles, the shareholders proceeded on the basis of the concept of provisionally effective resolutions.
In the view of the OLG München, there was therefore no reason to depart from the principle that a designated chair of the meeting is regularly authorised to declare resolutions adopted. According to the specialist publisher’s summary as well, the provisional effectiveness of the removal resolution is expressly linked to the fact that the resolution was declared adopted by the appointed chair of the meeting.
Legal certainty regarding the resolution status
The OLG München placed the concept of voidable but declared and therefore provisionally effective resolutions at the centre of its reasoning. This concept serves legal certainty within the company, in particular by clarifying which resolution status is to be taken as the basis for the time being.
Case law even assumes a declaration of a resolution in the legal sense in the absence of an express declaration if the purpose of the requirement is achieved in an equivalent manner. This may occur, for example, through inclusion in minutes. In the present case, the minutes left no doubt as to who had adopted a resolution with what content and by what majority.
Consequences for the GmbH’s capacity to conduct legal proceedings
Removed managing director could no longer represent the GmbH
According to the OLG München, the declared removal resolution was provisionally effective. It remained so as long as it had not been declared void by a final and binding judgment as a result of an action to challenge the resolution.
It followed that the previous managing director could no longer validly represent the GmbH in the present proceedings. In the absence of valid representation, the GmbH lacked the capacity to conduct proceedings in this respect. The additionally published specialist publisher’s account describes the consequence accordingly: the removed managing director can no longer represent the company in legal proceedings; if there is no other representation, the GmbH lacks the capacity to conduct legal proceedings.
Time-limited prohibition on acting was no longer decisive
The Regional Court had still based its decision on the previously issued judicial prohibition on acting against the previous managing director. However, this prohibition was limited until 24 July 2026. At the time of the OLG München’s decision, it therefore no longer precluded his authority to represent.
The OLG München therefore no longer based the outcome on the time-limited prohibition on acting, but on the provisionally effective removal by the shareholder resolution of 7 July 2026.
Further shareholders’ meeting did not remedy the lack of capacity to conduct proceedings
The shareholders’ meeting of 24 July 2026 also did not eliminate the GmbH’s lack of capacity to conduct proceedings. The OLG München left open whether that meeting had validly confirmed or again resolved the removal of the previous managing director.
The decisive point was that the removal resolution of 7 July 2026 was not rescinded at the later meeting by the required majority. The votes concerning the previous managing director ended in a tie. Whether voting prohibitions existed or votes should have been assessed differently under fiduciary-duty considerations could not be assessed due to the absence of factual submissions.
Litigation power of attorney and lack of capacity to conduct proceedings
Valid power of attorney does not replace missing capacity to conduct proceedings
Although the litigation power of attorney of the legal representatives had been validly granted, this ultimately did not assist the GmbH. The power of attorney had indeed been granted before the disputed shareholders’ meeting by the managing director who was at that time undisputedly authorised to represent the company alone. However, it did not cure the GmbH’s lack of capacity to conduct proceedings.
The provisions of §§ 241, 246 ZPO (Zivilprozessordnung, German Code of Civil Procedure) were not applicable. They presuppose that the lack of capacity to conduct proceedings arises only during pending proceedings. Here, however, the proceedings were not initiated until the application of 10 July 2026. At that time, in the view of the OLG München, the previous managing director had already been provisionally effectively removed.
§ 51 para. 3 ZPO not applicable to the GmbH
§ 51 para. 3 ZPO also did not help. According to its wording and purpose, the provision applies only to natural persons. It was therefore not applicable to the GmbH as a legal entity.
Classification in connection with register-law issues
On 23 July 2026, in another proceeding under case reference 34 Wx 168/26 e, the OLG München dealt with register-law issues concerning the removal of a GmbH managing director. According to that decision, when the removal of a GmbH managing director is filed for registration, the Registergericht (registry court) examines the formal requirements and, where there are justified concerns, also the accuracy of the substantive facts.
According to the same decision, an interim order (Zwischenverfügung) is inadmissible if it does not specify a concretely remediable obstacle to registration together with the means for remedying it. It is inadmissible in particular if, in substance, it amounts to withdrawal of the filing or to bringing about a civil judgment.
This register-law decision concerns a different proceeding. However, it shows that the removal of GmbH managing directors can raise significant delimitation issues both in the company’s internal relationship and in registration proceedings.
Key points of the decision
The decision of the OLG München clarifies several central points for GmbH practice:
- A removal resolution adopted at a shareholders’ meeting lacking a quorum is not void for that reason alone.
- Such a resolution may be voidable, but remain provisionally effective until it is declared void by a final and binding judgment.
- In the case decided, provisional effectiveness depended materially on the declaration by the appointed chair of the meeting.
- The failure of shareholders to attend does not give rise to deemed presence if the articles of association provide for a follow-up meeting without a quorum requirement in the event that no quorum is present.
- A managing director who has been provisionally effectively removed can no longer represent the GmbH in legal proceedings.
- If there is no other valid representation, the GmbH lacks the capacity to conduct legal proceedings.
The appeal therefore remained unsuccessful. The application for an injunction was inadmissible because the GmbH was not validly represented in the proceedings by the previous managing director.
Frequently asked questions
OLG München 7 W 1058/26e: Is a removal resolution void if adopted at a GmbH meeting lacking a quorum?
According to the decision of the OLG München, such a resolution is not void merely because there was no quorum. It is generally voidable and may remain provisionally effective until it is declared void by a final and binding judgment.
GmbH articles of association with follow-up meeting without quorum: Does the failure of shareholders to attend count as presence?
According to the decision of the OLG München, failure to attend does not give rise to deemed presence if the articles of association provide for a follow-up meeting without a quorum requirement in the event that no quorum is present. In this constellation, the shareholder who stays away may generally be referred to the follow-up meeting provided for in the articles of association.
What practical consequences does OLG München 7 W 1058/26e have for the capacity of a GmbH to conduct legal proceedings?
If a managing director has been provisionally effectively removed by a declared removal resolution, he can no longer represent the GmbH in legal proceedings. If there is no other valid representation, this may result in the GmbH lacking the capacity to conduct legal proceedings.
Corporate law advice from MTR Legal
Resolutions on the appointment and removal of managing directors regularly affect a GmbH’s ability to act and may also have consequences for pending or future proceedings. Especially where provisions in the articles of association concerning quorum, chairing of meetings, or the declaration of resolutions interact, a careful legal assessment of the specific resolution status is required. MTR Legal Rechtsanwälte supports companies, shareholders, and investors in corporate-law matters relating to GmbH corporate bodies, shareholders’ meetings, and proceedings concerning defective resolutions; further information can be found at Legal advice in corporate law.
