restriction on recallable a manager to important reasons (§ 16 para 1 and 3 GmbHG) following addition in paragraph 5 of the social contract a limited liability company is filed for registration in the Commercial Register:
The shareholder M ** S ** stands for the duration of its shareholding to the special right to appoint a Managing Director (right of delegation) to establish its right to represent and modify, the ordered Managing Director at any time to recall. ** M ** S
can also order the director himself. The S ** M ** as part of his right to appoint appointed executive director may be removed only for good cause.
The provision in the last sentence of the revised provision is illegal:
According to § 15 para 1 GmbHG can be made an order of managers in the social contract only if members are appointed as managers. According to § 16 para 1 GmbHG the order can be revoked as Managing Director by resolution of the shareholders at any time, however, the admissibility of the revocation pursuant to § 16 para 3 GmbHG be limited to important reasons, if the appointment of the management is done in the social contract.
Such appointment of directors to shareholders can be done by way of the amendment, but is generally that the appointment of non-shareholders to managers excluded in the social contract (
Umfahrer , GmbHG § 4 para 176;
Straube / Ratka / Völkl in
Straube GmbHG § 15 para 35).
In technical legal terms, the order in the social contract condition for the admissibility to restrict the removal of such manager to the existence of good cause or the beneficiary shareholders a special law on the management of grant (
Koppensteiner / Rüffler , GmbHG § Rz 15 10 ). The principle of free recallable of directors in accordance with § 16 para 1 shall therefore not compared to a hand Managing partners, the company contracted recallable restricted to important reasons and also not to shareholder-managers, where a special law was given to management (
Koppensteiner / Rüffler supra § 16 para 4).
§ 16 para 3 posited therefore an exception to the principle of freedom of recallable managers. This requires, however, that it is the actual person is a shareholder-director is, a statute legislation which prohibits the removal of foreign directors on the existence of good cause is addictive, is excluded (
Duursma / Duursma-Kepplinger / Roth , Manual GesR ref 2837). Thus, even the labor contract of employment with the Managing Director of the rule of § 16 section does not modify first Accordingly, for the foreign manager is no way to stabilize its position on this path (
Koppensteiner / Rüffler supra § 16 para 6,
Duursma / Duursma-Kepplinger / Roth, supra ref 2844) exists.
For the specific case, this means that a shareholder of M ** S ** due to the company contractually granted right to appoint appointed Managing Director, under any circumstances pursuant to § 16 para 1 Appointed Managing Director is possible, even not when M ** S ** as part of his posting rights should appoint a co-partner managing director. Also in this case, it would in fact absent from the condition of the order of the specific person
"in the social contract" . It follows that a statutory scheme is impossible to restrictions on the right to recall important reasons for such directors, because this is illegal to tamper with the basic principle of § 16 para 1 GmbHG out.
