Introduction
Facts
Applicability of Holzmüller doctrine


Introduction

In a recent decision,(1) the Supreme Court clarified and commented on the Holzmüller doctrine with regard to the unwritten competences of shareholders of stock corporations.

While the ruling explicitly carved out the issue of whether the Holzmüller doctrine applies in Austria, it also clarified the legal fate of transactions entered into by a management board without the shareholders' approval. The court held that while these transactions remain valid both towards and enforceable by third parties, the management board may face damages claims when acting without obtaining the shareholders' consent.

Facts

The plaintiff was a shareholder (with shares representing 21.6% of the share capital) and member of the supervisory board of a stock corporation. The management board entered into a framework agreement and subsequently acquired hotels in Germany. The plaintiff argued that both the framework agreement and the following acquisition of hotels in Germany required shareholder approval. Since neither the statutes of the stock corporation nor the Stock Corporation Act provided for mandatory shareholder approval in such circumstances, the plaintiff based its Holzmüller-like claim on unwritten mandatory competences of the shareholders.

Applicability of Holzmüller doctrine

While the landmark German Supreme Court decision in Holzmüller(2) held that the management boards of German stock corporations must obtain shareholder approval where a proposed transaction is of outstanding importance and could substantially affect the shareholders' rights, no explicit Austrian Supreme Court ruling on the Holzmüller doctrine exists.

In the case at hand, the Austrian Supreme Court (as in a prior decision(3)) explicitly carved out the issue of whether the Holzmüller doctrine applies in Austria per se. The court pointed out that almost all Austrian legal scholars opine that the doctrine does apply in Austria, and that its prior ruling was rendered in light of the Holzmüller doctrine. However, the court stated that the legislature could have referred to the applicability of the doctrine in the explanatory remarks to the Stock Corporation Act when Section 103 was re-enacted in 2009, but did not do so.

The Stock Corporation Act does not provide for initiative directives from other corporate bodies towards the management board. Section 95(5) of the Stock Corporation Act provides that the company statutes or supervisory board itself may determine that – in addition to those activities listed in Section 95(5) – certain types of business can be carried out only with the supervisory board's consent. Shareholders can decide on business issues only in cases where:

  • the management board itself decides to submit a matter to the shareholders; or
  • the supervisory board so requires (provided that the matter or business is listed in Section 95(5) of the Stock Corporation Act).

However, shareholders cannot take the initiative. Legal scholars opine that the management board must submit matters of significant importance to the shareholders; the Supreme Court's decision indicates that the court shares this view.

For further information on this topic please contact Wolfgang T Graf at Graf Patsch Taucher Rechtsanwälte GmbH by telephone (+43 1 53 54 820), fax (+43 1 53 54 820 44) or email ([email protected]). The Graf Patsch Taucher Rechtsanwälte website can be accessed at www.gpra.at.

Endnotes

(1) OGH, October 9 2014, 6 Ob 77/14p.

(2) BGHZ 83, 122 (Holzmüller).

(3) OGH, March 11 1996, 1 Ob 566/95.