Duties of loyalty are generally recognised in company law and in particular in the case of the company with limited liability (GmbH) in established case law. Duties of loyalty exist not only between the shareholders and the company, but also between the shareholders themselves.
These duties of loyality can vary in intensity and regularly depend on the particular circumstances of the individual case. For example, the content of the duties of loyality can also be substantiated by a side agreement (syndication agreement) between the shareholders (6 Ob 140/20m; 6 Ob 155/20t).
The duty of loyalty of a shareholder of a GmbH also requires appropriate consideration of the legitimate interests of the co-shareholders when exercising voting rights in the general meeting. Abuse of voting rights can lead to the contestability of the shareholders’ resolution (RS106227). In the case of a GmbH, it is accepted that the shareholders have a fiduciary duty to vote in favour of the retention of profits if this is necessary for the company’s economic survival (6 Ob 105/19p).
However, the question of whether a legitimate expectation has been established merely by a lawful practice of the shareholders carried out over a certain period of time, from which a co-partner can derive rights, depends on the specific circumstances of the individual case (6 Ob 192/21k).
