OLG Hamm on Non-Compete Clauses in GmbHs
The Oberlandesgericht Hamm (OLG Hamm, Higher Regional Court of Hamm), in its judgment of 15 July 2026 – 8 U 66/26 – ruled on claims for injunctive relief brought by a GmbH (German limited liability company) against a shareholder and against that shareholder’s wholly owned subsidiary. The case centered on a non-compete clause agreed in the articles of association, the requirements for an authorization resolution under § 46 No. 8 GmbHG (German Limited Liability Companies Act), and the question of whether a subsidiary that does not hold an interest in the GmbH can be held liable on the basis of good faith under § 242 BGB (German Civil Code).
According to the court’s guiding principles, in the event of breaches of a non-compete clause contained in the articles of association, a GmbH may, under certain conditions, also seek injunctive relief directly against a shareholder’s wholly owned subsidiary. This requires that the subsidiary breaches the non-compete clause and that piercing the corporate veil under the principles of good faith is justified. At the same time, the OLG Hamm clarified the requirements for enforcing such claims in preliminary injunction proceedings.
Facts: Distribution of LED Products Under the “R.” Brand
The applicant in the injunction proceedings under No. 1 is a GmbH founded in 2017 that manufactures and distributes LED products, in particular LED drivers, under the established “R.” brand throughout Europe. It was founded by the applicant in the injunction proceedings under No. 2, who is domiciled in Germany, and a Chinese company, the respondent in the injunction proceedings under No. 1. According to the additionally reported information, the respondent under No. 1 holds 30 percent of the shares, while the applicant under No. 2 holds 40 percent.
The respondent under No. 1 and the applicant under No. 1 entered into a cooperation agreement in connection with the formation of the company. Before the German GmbH was founded, the Chinese companies were neither present nor active on the European market. The GmbH initially sourced the products predominantly from the respondent under No. 1 and introduced them to the European market.
Non-Compete Clause in the Articles of Association
In the articles of association of the applicant under No. 1, the shareholders had undertaken, for the duration of their membership in the company, to refrain from any self-employed or employed activity within the company’s local and substantive field of activity. This non-compete clause therefore did not refer to the more broadly defined corporate purpose, but rather to the actual field of activity of the GmbH.
Several years later, the respondent under No. 1 established the respondent under No. 2 as a wholly owned subsidiary. This subsidiary had the same managing director, the same registered office, and the same email address. Subsequently, product orders were shifted to the subsidiary, without any exclusivity agreement being concluded.
Announcement of a New Distribution and Support Structure
At the end of 2025 and the beginning of 2026, respectively, the respondents terminated the business relationships with the applicant under No. 1. Prior to this, they contacted customers of the GmbH by email and announced a new distribution and support structure for products of the “R” series in Europe.
The applicants then applied for injunctive relief by way of interim legal protection. The Landgericht Hagen (Regional Court of Hagen) granted the application against the respondent under No. 1, who was entered in the list of shareholders, but dismissed it in relation to the subsidiary. Both sides appealed against this decision.
International Jurisdiction and Applicable Law
The OLG Hamm first affirmed the international jurisdiction of the court at the registered office of the applicant under No. 1. It based this on § 29 ZPO (German Code of Civil Procedure). Under that provision, the place of performance may be decisive as the forum for disputes arising from a contractual relationship.
The court also considered German law to be applicable. Under Art. 4 Rome I Regulation, the non-compete obligation, as the characteristic performance, was to be performed at the registered office of the applicant under No. 1. German law was therefore decisive for the assessment of the non-compete clause contained in the articles of association.
No Claim for Injunctive Relief Against the Shareholder Without an Authorization Resolution
The OLG Hamm did not uphold a claim for injunctive relief by the GmbH against the respondent under No. 1. In the court’s view, an authorization resolution under § 46 No. 8 GmbHG was lacking. According to the decision, such a resolution is a substantive prerequisite for a GmbH to assert claims for injunctive relief against a shareholder.
The court clarified that exceptions are possible in preliminary injunction proceedings. Accordingly, a resolution may exceptionally be dispensable if convening a shareholders’ meeting would be incompatible with the urgency and would frustrate the claims pursued. In the case decided, however, the OLG Hamm did not accept such an exception.
Proceedings Lasting Almost Five Months
The decisive factor was that the urgent proceedings extended over a period during which a shareholders’ meeting could have taken place. It is further reported that the OLG Hamm still considered the authorization resolution necessary even after proceedings had lasted almost five months. During this period, there had been sufficient opportunity to procure a corresponding shareholders’ resolution.
The decision thus shows that the urgency of injunction proceedings does not automatically displace the company’s internal decision-making process. If the proceedings extend over a period during which a shareholders’ meeting is possible, § 46 No. 8 GmbHG must, in the view of the OLG Hamm, generally still be observed.
No Separate Claim by the Co-Shareholder
The OLG Hamm also rejected a claim for injunctive relief by the applicant under No. 2. The co-shareholder had not credibly demonstrated any individual loss going beyond merely reflective loss. According to the decision, a merely indirect disadvantage resulting from harm to the company was not sufficient.
In the court’s view, an actio pro socio was also not available. In this respect, the OLG Hamm relied on the subsidiary nature of the shareholder action in relation to the company’s own action. The enforcement of claims belonging to the company therefore generally remains reserved to the company itself.
Claim for Injunctive Relief Against the Wholly Owned Subsidiary
The OLG Hamm assessed the claims against the respondent under No. 2 differently. Injunctive relief was granted against this subsidiary as requested. Since the subsidiary was not a shareholder of the applicant under No. 1, no authorization resolution under § 46 No. 8 GmbHG was required in relation to it.
The court affirmed that the subsidiary was bound by the non-compete clause by way of piercing the corporate veil under § 242 BGB. According to the decision, the decisive factor was the extensive economic identity between the respondent under No. 1 and its wholly owned subsidiary. Without such attribution, there would be a possibility of circumventing a non-compete clause contained in the articles of association indirectly through a controlled company.
Indirect Competition Through a Controlled Company
The OLG Hamm equated indirect competition through the controlled subsidiary with a direct breach of the non-compete clause. The respondent under No. 2 therefore could not avoid responsibility solely because it was not itself a shareholder of the GmbH. The decisive factor was the particular interconnection between the two Chinese companies.
According to the additionally reported information, piercing the corporate veil in relation to the subsidiary applies only to the business area actually carried on. It also applies only for as long as the parent company holds an interest in the GmbH. The scope of the obligation to comply with the non-compete clause therefore remains limited.
Definiteness of the Non-Compete Clause
The OLG Hamm considered the non-compete clause contained in the articles of association to be sufficiently definite in substantive and territorial terms. According to the court’s guiding principles, it is sufficient if the prohibition does not refer to the broadly defined business field or corporate purpose, but rather to the company’s “field of activity.”
Upon the required interpretation, this field of activity is limited both substantively and territorially. It encompasses the specific competitive activities actually carried on by the GmbH as well as the territorial market actually served in this context. In the case decided, this concerned in particular the Europe-wide distribution of LED products under the “R.” brand.
Distinction From the Corporate Purpose
The decision distinguishes between the corporate purpose, which is often described more broadly in the articles of association, and the narrower actual field of activity. In the court’s view, a non-compete clause that refers to the local and substantive field of activity can be sufficiently ascertainable. It does not have to expressly list the specific business activities in every detail.
For the assessment, what mattered was how the GmbH actually operated in the market. The actual field of activity therefore also limits the scope of the prohibition. The decision does not imply any extension to business fields that are not pursued or are only abstractly possible.
Classification of the Decision
The decision of the OLG Hamm highlights several requirements under corporate law in connection with non-compete clauses in GmbHs. The focus is both on the company’s internal decision-making and on the scope of the binding effect vis-à-vis affiliated companies.
Key points of the decision are:
- A claim for injunctive relief by the GmbH against a shareholder generally requires an authorization resolution under § 46 No. 8 GmbHG.
- In preliminary injunction proceedings, such a resolution may exceptionally be dispensable if convening a shareholders’ meeting would frustrate enforcement of the claim.
- If the urgent proceedings extend over a period during which a shareholders’ meeting can take place, the resolution remains necessary.
- A wholly owned subsidiary of a shareholder may be sued directly for injunctive relief under § 242 BGB if otherwise an indirect circumvention of the non-compete clause would be possible.
- A non-compete clause can be sufficiently definite if it refers to the local and substantive field of activity of the GmbH.
To the extent that the OLG Hamm also referred to the possibility of a minority shareholder influencing the management as a prerequisite for validity, the original article noted that this could apply only to a non-compete obligation arising from the status as a shareholder itself. In the case of a non-compete clause expressly agreed in the articles of association, this question must be considered separately.
Frequently Asked Questions
OLG Hamm 8 U 66/26: When does the GmbH need an authorization resolution under § 46 No. 8 GmbHG?
According to the decision of the OLG Hamm, an authorization resolution is required if the GmbH asserts claims for injunctive relief against a shareholder. In preliminary injunction proceedings, it may be dispensable only in exceptional cases if a shareholders’ meeting would be incompatible with the urgency.
GmbH non-compete clause: Can a shareholder’s subsidiary be liable for injunctive relief?
The OLG Hamm affirmed a claim for injunctive relief against the wholly owned subsidiary because, due to the extensive economic identity, piercing the corporate veil under § 242 BGB was considered possible. Indirect competition through a controlled company was equated with a direct breach.
OLG Hamm GmbH non-compete clause: What practical consequences does the decision have for companies?
The decision makes clear that non-compete clauses in articles of association can also cover group-like structures if circumvention would otherwise be possible. At the same time, internal corporate decision-making under § 46 No. 8 GmbHG remains of considerable importance in the case of claims against shareholders.
Corporate Law Advice on Non-Compete Clauses
Non-compete clauses in GmbH articles of association regularly raise questions concerning scope, enforceability, and internal decision-making. The decision of the OLG Hamm shows that both the position of the shareholder and interconnections with affiliated companies must be carefully assessed. MTR Legal Rechtsanwälte advises companies, investors, and shareholders on corporate law issues in connection with non-compete clauses, shareholder disputes, and the enforcement of company-related claims; further information can be found at Legal advice in corporate law.
