How do managers differentiate themselves
15.5.2 Managing Director
In the GmbH, the principle of self-organization dominates (see Chapter 3.4.1), i.e. all shareholders are authorized to manage the company, but only all together (Art. 809 Paragraph 1 OR). For reasons of practicality, however, each partner can represent the company individually (Art. 814 Paragraph 1 OR). The shareholders' meeting has the option of appointing third parties who are not shareholders as additional managing directors (Art. 804, Paragraph 2, Item 2 OR).
However, the articles of association can deviate from this regulation and the management can
- individual managing partners or to
- be transferred to a management body that does not (only) consist of shareholders.
As with the AG, there is a presumption of competence in favor of the management (cf. Art. 716 para. 1 OR), so that all tasks fall to it that have not been assigned to another body by law or the statutes (Art. 810 para. 1 OR ). Art. 810 para. 2 OR contains a list of non-transferable and inalienable tasks of the management, whereby these decisions can also be subject to approval by the shareholders' meeting (Art. 811 OR; the E-OR wants to exclude individual management tasks from the approval requirement). In this way, the social base can secure the influence on the management despite the transfer of management to third parties.
In contrast to the AG (cf. Art. 716a OR), the appointment and dismissal of managing directors is subject to the shareholders' meeting and not to the management or the board of directors. This is an expression of the stronger weighting of the shareholders' meeting compared to the AG, which is expressed in the much longer catalog of tasks of Art. 804 OR (cf. with Art. 698 OR) and particularly in the reservation of approval for inalienable tasks of the management (Art. 804 para 17 OR). In this way, the shareholders' meeting can also influence decisions that are made exclusively by the board of directors at the AG, such as strategic decisions and decisions with major financial implications.
Managing directors elected by the shareholders' meeting (regardless of whether they are shareholders or not) can be dismissed by it at any time (Art. 815 para. 1 OR).
The same rules apply as for the AG (cf. Art. 705 OR). If, on the other hand, the managing director did not become managing director by resolution of the shareholders' meeting, but by virtue of his shareholder status (Art. 809, Paragraph 1, Clause 1 OR), an amendment to the Articles of Association is necessary for removal.
The individual partner can apply to the court to withdraw or restrict the management and representation authority of a managing director if there is an important reason (Art. 815 para. 2 OR).
The managing directors, like the board of directors, are subject to stock corporation law (see Chapter 14.5 and Art. 827 OR) and thus to the same duties of care (see Chapter 14.2.7 and Art. 812 Paragraph 1 in conjunction with Art. 717 Paragraph 1 OR).
BGE 81 II 544
E. “The only question to be decided is whether the defendant is the managing director and representative of Bryner & Co. GmbH. the shareholders could be dismissed by a mere majority resolution or whether the withdrawal of his management authority was only possible for important reasons.
The ambivalent nature of the GmbH. A hybrid form between partnership and corporation is also evident in the legal regulation of management and representation. In principle, it is available to all partners jointly (Art. 811 Paragraph 1 OR) and, as with the general partnership, can only be withdrawn for important reasons (Art. 814 Paragraph 2 OR). However, it can be transferred to one or more shareholders (Art. 811, Paragraph 2) or, in deviation from the law of a partnership, to third parties who are not shareholders (Art. 812, Paragraph 1), by means of the articles of association or a company resolution. In the event that management is transferred to a third party, Art. 814 Paragraph 3 OR provides that it can be withdrawn at any time by means of a company resolution; on the other hand, the dismissal of the partner appointed by a company resolution to manage the company is not expressly regulated by law.
[...] Contrary to the defendant's view, it does not necessarily follow from the current legal text and its history that Art. 814 (2) OR applies to the withdrawal of the management and representation of a partner. Already from the phrase "among the partners" used in this provision, the provisions of the general partnership are applicable, it can be concluded that the law only considers the case of joint management by all partners within the meaning of Art. 811 para. 1 OR would have. However, where a different regulation is made, the type of reason given by the management is important for the question of their withdrawal. The management assigned to a partner by law or the articles of association is under company law and therefore remains fundamentally irrevocable, unless there are important reasons (Art. 539 OR). The situation is different if a partner is only granted management by a resolution of the company. It does not establish a corporate right to manage the company that can only be withdrawn for important reasons, but merely a contractual and consequently revocable claim, such as the non-shareholder appointed to manage the company. There is therefore no legal obstacle to withdrawing the management that has been transferred to a shareholder by a company resolution without good cause.
The statutes of Bryner & Co. GmbH. stipulate that the management should be transferred to one or more persons who do not need to be shareholders (Art. 14) They exclude a company law, justified by law or statutes right of the shareholders to the management and only provide for their transfer by contract (resolution). In addition, its wording shows that the managing partners wanted to be treated on an equal footing with the third parties appointed as managing directors. It was therefore permissible to withdraw the management and representation from the defendant without evidence of an important reason by resolution of the company. It is undisputed that a majority resolution was sufficient and valid, as is the fact that the resolution by which the defendant was appointed managing director did not subject his dismissal to any restrictions. "
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