4.3.5.1 Introduction

This paragraph describes several categories of important reasons to exit a GmbH. These categories are primarily based on established views in legal literature, as case law concerning the determination of presence of an important ground to exit the company is rare. As will be seen, these important reasons do not only stem from the company's affürs. The scope of the oppression remedy also extends to important reasons stemming from the personal affürs of the shareholder.1It is expressly noted that the described categories do not form a closed system, while the concept of important reason is an open-ended concept. It is conceivable that in the future additional circumstances may lead to the recognition of an exit right, though it is conceivable as well that the range of circumstances may be restricted.

In English law, we have seen that the dismissal of a shareholder as a director in a quasi-partnership forms one of the most important categories in the case law on the unfür prejudice remedy.2It is highly remarkable that this category is non-existent in German law. According to Brinkman, this is caused by § 38II GmbHG.3 This provision is particularly relevant for companies in which shareholders are also managing directors, or in other words quasi-partnerships.4 This provision makes it possible to include in the articles of association a clause stipulating that managing directors can be dismissed only if there is an important reason to do so. Brinkman puts forward that the majority of German GmbH quasi-partnerships have included this rule in their articles of association. In addition, the Supreme Court even held that in certain circumstances, dismissal of a director without the presence of an important reason, although not prescribed by the articles of association, is in conflict with the duty of loyalty. The case involved a majority shareholder who dismissed the 49% co-shareholder as a director of a GmbH with the characteristics of a quasi-partnership.5