Disproportionate distribution of profit

Pursuant to § 82 (2) GmbHG, the profit is generally distributed in proportion to the capital invested. However, an resolution, according to which the shareholders can decide on a disproportionate distribution of profit by an unanimous shareholders’ resolution is permissible. Such a distribution of the profit can be prevented with a dissenting vote or under the conditions of § 41 GmbHG by bringing an action. For a successful contestation pursuant to § 41 GmbHG, a shareholder must submit a objection and file a statement of claim within one month. An absent shareholder who has not been admitted or invited to the shareholder’s meeting only has to file a claim within the deadline. The claim will be granted if the resolution violates the articles of association or mandatory legal provisions or if the resolution cannot be considered to be legally binding. [OGH  20.07.2016, 6 Ob 74/16z].