In the case of an action for shareholders, each shareholder is entitled, during his membership of the company, in the interest of the company, to bring an action for benefits in the company’s assets on the grounds of a social entitlement alone and in his own name. Social claims are claims of the company against its partners from the company relationship. We explain under which conditions a shareholder action is conceivable.

In principle, the shareholder action serves to assert social claims as a shareholder. Social claims are claims of the company against its partners from the company relationship. These claims are usually claims for damages against a shareholder who has not sufficiently fulfilled his social obligations. In addition, the entitlement to contributions, the entitlement to fulfil management obligations and the additional entitlements resulting from management shall also be considered as social entitlements. In contrast, the claims of the shareholders against the company are so-called social liabilities and therefore not social claims.

A shareholder is not only a creditor of a social claim. The personal duties of a partner are not intended to enrich the other partners. Rather, the aim is to promote the common purpose. Therefore, the contribution obligations of the shareholders are part of the company assets. The shareholders can therefore not assert the performance of the obligations of another shareholder on their own behalf. Rather, the claim of the collective association of all shareholders is therefore the right of the company. Therefore, a shareholder needs a special right in order to be able to assert a claim. The shareholder action grants him this right. Accordingly, in the case of an action for shareholders, each shareholder is entitled, during his membership of the company, in the interest of the company, to bring an action for benefits in the shareholder’s assets solely and in his own name because of a social entitlement. Consequently, the shareholder action gives the substantive power of recovery and the power of litigation. This applies irrespective of any representation power of the shareholder. Latin this type of lawsuit is called actio pro socio.

Since the social claims can only be asserted by a representative managing director, there are cases in which the assertion of social claims is problematic. For example, the managing director can be a claimant of the social claim, for example, if a claim for damages is made against him. Then the manager will not sue the claim against himself. On the other hand, the managing director may be prevented for a short time, but the assertion of the social entitlement may be rushed. Therefore, a shareholder action can always be considered if the directors are not willing or able to assert or bring the claim against a shareholder on behalf of the company. Accordingly, the shareholder action can also be understood as a kind of emergency right of the shareholders.

The shareholder action is not standardized by law, but has developed under judicial law. It can therefore be assigned to unwritten customary law. The entitlement of the shareholders to shareholder action is based on the mutual obligation of the shareholders to take care of each other. Consequently, the promise of fulfillment of a claim directly arising from the articles of association by a partner acts not only for and against the company, but also towards the other partners.

According to the prevailing opinion, the plaintiff asserts a right of the company, that is, a right alien to him. This is to be done by way of the legal status for the company but in the own name of the shareholder. This is a legal process. A contractual stage of litigation would have the effect that the shareholder action could be withdrawn in the articles of association by majority decision. However, there is a considerable economic need for the shareholder action. This is prevented by the possibility of their exclusion. Consequently, the lawsuit cannot be rescinded in the articles of association.

Claims covered by the shareholder action are, as set out, social claims. Therefore, it does not include the individual claims of one partner against another which are not based on the company relationship. Claims of the company against the shareholders which are not based on the company relationship cannot also be asserted by way of action.

The requirements of the shareholder action have not yet been finally clarified. Nevertheless, it must be sufficiently examined whether it is actually permissible and promising. It is certain that the shareholder action breaks through the actual distribution of jurisdiction through the process. It must therefore only be used as a subsidiary aid. Therefore, in any case, the prior request to the responsible management bodies is required. A shareholder action should therefore only be brought if there is actually no other way of enforcing the legitimate social rights. Other possibilities would be, in particular, the lawsuit by the company itself. Where appropriate, an attempt must be made to obtain the assertion of social entitlements by shareholder resolution. In addition, the shareholder action may not be pursued unlawfully. Untrustworthy action exists, however, if interests of the company were not observed in the independent assertion by the shareholder vis-à-vis the responsible management bodies or in the shareholder action.

However, it is controversial whether the inaction of the management bodies must be based on anti-social motives. On the other hand, there is the argument that the shareholder action is actually an instrument of minority protection and that the controlling power of the shareholders is thereby to be secured. It would be contrary to this if strict and difficult to prove conditions were imposed on them.

It is important that the partner bringing the action always demands the performance for the company and not for himself. Only then is the action substantively justified, since only it is entitled to the claim in substantive law.

If a partner does not assert a claim against your third party in an external relationship, the other partners naturally have an interest in asserting the claim independently. However, in legal transactions outside society, there is a need for competences to be clearly distributed in society. This clear order must be broken only in the internal relations of society. A validity of the shareholder action in the external relationship is therefore only possible in exceptional cases. These exist, for example, if the assertion of the claim is urgently necessary in order to obtain an asset of the company or if the managing director acts collusively and purposefully with the third party to the detriment of the company or the shareholders.

It remains to be clarified in which legal forms the shareholder action comes into consideration.

For the company civil law, the validity of the shareholder action is derived from § 705 BGB, which regulates the mutual obligations of the shareholders. The principle of the identity of partnerships means that, when the conditions are met, one partnership is immediately converted into another. Consequently, the instrument of shareholder action is also necessary in the case of other partnerships, such as the open commercial company or limited partnership.

It is therefore only questionable whether there is such a thing also in corporations, such as the limited liability company or public limited company. In the case of the public limited company, there is a specially regulated minority protection. In accordance with §147 II 2 AktG, the company can apply for the judicial appointment of a special representative of the company to assert compensation claims of the company and, under the conditions of the newly created §148 AktG, can itself apply for admission to legal action. In rare individual cases alone, the case law has allowed a shareholder action with the public limited company.

A minority protection comparable to the public limited company does not exist at the GmbH. However, the shareholders can exert pressure on the managing director via the shareholders' meeting. However, in particular in the shareholder contract, any dismissal may be restricted. There is therefore a practical need to allow the shareholder action also at the GmbH.

An action for shareholders is possible in particular in the case of claims for damages in the internal relationship between the shareholders. It does not have many requirements and is suitable for non-executive or other representative minority shareholders. But remember to demand the performance to society and not to yourself.