The starting point: removal and the information vacuum that follows
The removal of a managing director ends his position as a corporate officer — but not automatically his practical ability to influence the company. In practice, the same problems regularly arise after a removal: the former managing director still has access credentials to IT systems, holds client contacts and contract documentation, continues to act in the company’s name towards business partners, or exerts influence over clients, suppliers and employees. The company then faces the question of how to stop this influence quickly — before main proceedings have even been initiated.
The tool: interim injunction
The interim injunction under Sections 935, 940 ZPO is the appropriate remedy where swift action is required and waiting for a judgment in the main proceedings would allow the damage to grow further. It can be directed at an injunction (prohibiting certain acts) or at delivery up (handing over documents, access credentials, keys). In particularly urgent cases it is issued without an oral hearing — as an order served on the respondent and immediately enforceable.
Grounds for the injunction: what can be prohibited?
The substantive claim arises from the lapse of authority to represent the company upon removal. From that point on, the former managing director is no longer entitled to act for the company. Typical bases for a claim:
Acting under the company name: Any continued representation of the company after removal constitutes unauthorised use of the company name (Section 37 HGB) and can be prohibited.
Use of trade secrets: Client lists, costing documents, technical know-how — access to such information after removal is protected under the Trade Secrets Act (GeschGehG) and can be enjoined.
Influencing employees and business partners: Instructions to employees or negotiations with suppliers without a mandate give rise to an injunction claim arising from the officer relationship and, where applicable, from Sections 823, 1004 BGB by analogy.
Delivery up of documents and access credentials: Following the end of his position, the managing director is obliged to hand over all company documents and access rights. This obligation can be enforced by way of a performance injunction.
Urgency: the second requirement
Alongside the substantive claim, there must be an urgency requirement justifying why the company should not have to wait for the outcome of main proceedings. This requirement is frequently met without difficulty in removal scenarios: continued unauthorised conduct damages the company’s standing immediately, and every further day of influence over clients and employees can create facts that are difficult to reverse.
The urgency requirement becomes critical, however, if the company waits too long. Courts require urgency — anyone who remains inactive for weeks or months despite knowing of the unauthorised conduct forfeits the possibility of interim relief. The application should therefore be filed promptly after becoming aware of the conduct.
Enforcement and main proceedings
Once granted, an interim injunction must be enforced within one month (Section 929 (2) ZPO) — that is, served on the respondent and, where applicable, entered in the commercial register. A breach of the injunction can result in a fine of up to EUR 250,000 or coercive detention. In parallel with the interim injunction, it is advisable to initiate main proceedings in which the injunction or delivery obligation can be permanently established.
Practical preparation: what must be secured before filing
An application for an interim injunction stands or falls on its preparation. The following must be secured before filing: the precise date of removal and how it was communicated (shareholders’ meeting resolution with date and documentary evidence), concrete, documented conduct of the former managing director after removal (screenshots, witnesses, correspondence), and a precisely worded injunction or delivery-up request. Courts regularly dismiss poorly drafted or insufficiently substantiated applications for interim relief — often without the possibility of amendment in the same instance.
This article presents a simplified overview of the legal position and does not replace advice in individual cases.