OLG Hamm on the Exclusion of a Limited Partner from a Limited Partnership (KG)

The Higher Regional Court of Hamm recently addressed the legal issue of whether the exclusion of a limited partner from a limited partnership (KG) based on a shareholder resolution can be lawful. In its decision dated March 1, 2023 (Case No. 8 U 48/22), the court found the misconduct of a limited partner, which included unjustified dismissals, so severe that it justified his exclusion from the company.

In the case at hand, the plaintiff and the defendants were limited partners of A GmbH & Co. KG, established in 2017. The defendants were also managing directors of this company. The dispute arose when the plaintiff, also the managing director of B GmbH, issued an unwarranted ban and server access suspension to one of the defendants, a long-term employee. These actions had significant negative impacts on the business operations of A KG, as the two companies were closely economically intertwined.

The Higher Regional Court of Hamm overturned the decision of the Regional Court, which had deemed the exclusion ineffective. The OLG argued that there was a significant reason in the sense of § 13 of the partnership agreement in conjunction with §§ 133, 140, 161 para. 2 HGB. Such a reason exists when the continuation of the company with the respective partner is unreasonable for the other partners. This requires a comprehensive evaluation of all relevant circumstances.

The actions of the plaintiff were seen as a significant breach of the fiduciary duty under company law. He put the company under economic pressure by demanding the payout of his credits from the loan accounts. The unjustified dismissals against one of the defendants also contributed to the unreasonableness of further cooperation. In light of these circumstances, the OLG Hamm saw the exclusion of the plaintiff from the KG as justified, as further cooperation under these conditions was considered unreasonable.