unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
How a family GmbH can structure disputes between an active successor and passive siblings over information, pay, profit and control.
After a family transfer, two legitimate perspectives often collide. The active successor works in the company, carries management responsibility and wants to decide quickly. Passive siblings own shares, bear economic risk and want to understand retained profit, management pay and strategic exposure. The dispute rarely begins with one legal breach. It grows from different roles, unequal information and unspoken expectations.
Company law separates active work, corporate office and ownership. The active successor receives remuneration for services only on a sound contractual basis. Distributions follow annual accounts, articles and shareholder resolution. Passive siblings remain voting shareholders and have the statutory information core in section 22 GmbHG. Family expectations do not replace these levels.
This article breaks the conflict into workable parts while all siblings remain shareholders. It is not merely about general information rights or compensation on exit. The page on dispute before succession places escalation routes in context.
The check separates information, money and decision power. The result can be sent to the firm with the essential facts.
Already know you want to get in touch? Go straight to the enquiry form.
Review the management or employment contract, reasonableness, decision authority and resolved profit allocation. Special benefits and transactions with a shareholder require particular attention under section 39 GmbHG.
Define a small set of metrics, a fixed rhythm and event driven notices. Passive shareholders gain oversight without entering personnel files, customer correspondence or daily decisions.
Arrange delivery of accounts and inspection under section 22 GmbHG. A specific written request clarifies the position; ongoing reporting beyond the statute should be agreed contractually.
Bundle figures and exceptional events in one understandable format. State that passive siblings supervise and vote but do not instruct employees or manage individual transactions.
Separate mandatory resolutions from negotiable expectations. Mediation can structure pay, distribution policy and communication while formal shareholder decisions remain properly made.
Create a responsibility matrix for management, shareholders and any advisory board. Material decisions receive a paper, applicable majority and minutes.
Review majorities, vetoes and amendment rules. Options include an advisory board, escalation meeting, mediation, buy out right or orderly exit. The solution must fit the company's liquidity.
The active successor may be shareholder, managing director and employee or contractor at the same time. Each position has its own rules. Appointment follows section 15 GmbHG, management duties include section 25 GmbHG, ownership voting follows section 39 GmbHG and remuneration follows contract.
Passive siblings are not lesser shareholders because they do not work in the company. They act through votes, resolutions and information rights. Their shares do not, however, authorise them to issue daily employee instructions or sign contracts for the GmbH.
Start with a role matrix recording ownership, office, contract, pay, reporting and approvals separately. The articles review checklist identifies the key fields.
Section 22 GmbHG requires delivery of the annual accounts and the reports identified there after preparation. It also secures a time limited inspection of books and records before the annual accounts decision. That minimum matters but is often insufficient for an ongoing family ownership structure.
Contractual reporting can summarise revenue, profit, liquidity, staffing, investment and special risks every quarter or half year. Defined events trigger an additional notice. Passive siblings no longer need to infer the company's position from fragments or rumours.
Confidentiality is the counterpart to transparency. Reports should not be forwarded unfiltered through family chats. Personnel data, customer information and trade secrets require limits. Information then serves control without becoming operational interference.
The active successor should receive appropriate pay for actual work. Remuneration rests on a management or employment contract and is set by the competent body. Passive siblings do not receive the same pay merely because they own equal shares. Their economic return generally arises from ownership.
A distribution requires annual accounts and a resolution on the use of distributable profit. Section 35 GmbHG assigns annual accounts and specified profit decisions to shareholders. Section 82 GmbHG protects company assets and limits payments to shareholders.
Disputes arise where salary, bonus, private benefits and distribution policy are mixed into one figure. A proper baseline separates work, market pay, investment need, reserves and distributable profit. Fairness can then be discussed without mixing legal categories.
Section 39 GmbHG uses simple majority of votes cast unless statute or articles provide otherwise. Amendments generally require three quarters under section 50 GmbHG and the articles may add requirements. Actual power depends on both ownership percentages and clauses.
Section 39 subsection 4 GmbHG can exclude voting where a shareholder receives a benefit, is released from an obligation or enters a transaction with the company. That may matter for the active successor's contracts and benefits and must be tested against the specific resolution. Not every family disagreement creates a voting exclusion.
Papers should be delivered before the decision and resolutions recorded. Informal agreement at a family meeting is not a shareholder resolution. Formal majority is likewise not a licence to conceal information or transfer company value improperly.
A sibling dispute has a corporate track of notice, papers, majorities, minutes and implementation. It also has a personal track of recognition for work, family equality and fear of losing control.
Mediation can work on the personal track but does not replace required resolutions. The outcome should be translated into reporting, pay rules, distribution policy, advisory board terms or an amendment to the articles. That is what makes the compromise durable.
Existing questionable resolutions require prompt legal review. Section 41 GmbHG governs challenges to resolutions contrary to statute or articles. The better long term position is a governance model that makes difficult decisions transparent before the vote.
Not every conflict requires separation. A fixed report, clear pay rule, distribution policy and a few strategic reserved matters may suffice. An advisory board can review figures and moderate discussion without taking over management.
Where joint ownership no longer works, a buy out, sale or compensation route may be considered. Valuation, payment and liquidity must be addressed together. An unaffordable immediate payment resolves the family dispute at the company's expense.
Compile articles, register extract, accounts, management contracts, resolutions and prior reports before choosing a route. The succession risk check supports the initial structure.
Not for work. The active successor may receive contractual remuneration for management or employment. Passive siblings generally receive economic returns through ownership and any distributions. Both levels require transparent and appropriate rules.
Section 22 GmbHG secures delivery of the specified annual documents and a time limited inspection of books and records. Quarterly or monthly reporting exists only where it has additionally been agreed.
Section 39 subsection 4 GmbHG contains voting exclusions for certain benefits, releases and transactions with a shareholder. Whether it applies depends on the content, decision authority and contractual structure of the specific resolution.
Where reliable information, clear pay and orderly resolutions still do not permit joint ownership, an orderly exit should be examined. Valuation, funding and protection of operating liquidity need to be designed together.
Book an initial consultation. We clarify the legal framework, critical documents and next steps. Callback within one working day.
Contact us