In the event that the shareholders of a GmbH remain “among themselves” and want to prevent a new shareholder from suddenly joining the company after the departure of a previous shareholder, in practice there are corresponding provisions regarding the access rights of the previous shareholders in the GmbH partnership agreements.

 

In a recent decision (OLG Linz August 27, 2019, 6 R 95/19m), the Linz Higher Regional Court addressed the question of whether and under what conditions the agreement of rights of access is permissible in the event of a shareholder’s insolvency.

In order to ensure that the shareholders of a GmbH remain “among themselves” and that a “stranger” does not suddenly join the company by acquiring a share in the company, it is common practice to agree on appropriate provisions in GmbH partnership agreements regarding the rights of the previous shareholders. If a partner leaves the company, the existing partners have the opportunity to take over the share of the departing partner and compensate him for the share in the business within the framework of the right of takeover. In many partnership agreements, such a right of access is agreed, especially in the event of the death or insolvency of a partner. The Linz Higher Regional Court addressed the question of whether and under what conditions the latter is permissible in its decision of August 27, 2019 on 6 R 95/19m.
You can find out how this question is answered by the Higher Regional Court and what this ultimately means in practice in this Newsletter.

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