In our "to the point", our experts shed light on current Austrian case law in corporate and corporate law for you every quarter.

Shortly: 

OGH on rights of delegation to the supervisory board : The dismissal of a supervisory board member sent by the co-shareholder by majority resolution - in violation of an omnilateral syndicate agreement - can be unfaithful and therefore contestable.

Supreme Court on the effect of void resolutions on subsequent resolutions : The nullity of a first resolution also results in the nullity of the second if there is a connection between the two resolutions.

OGH on the termination competence of the managing directors in the GmbH & Co KG : Due to the annex competence, the termination of a managing director service contract by the managing director of the general partner GmbH of a GmbH & Co KG also falls within the competence of the shareholders of the general partner GmbH, as does the termination of a managing director contract that is directly related to the GmbH .

OGH on the liability of the auditor : The auditor's obligation to speak in accordance with Section 273 UGB exists in the event of serious violations by the legal representatives or employees of the law, the articles of association or the articles of association. The omission of the obligation to speak is not illegal if a question is disputed and the auditor takes an objectively reasonable legal opinion, although not everything is justifiable simply because it was once represented in the literature.

OGH for the qualification of the clearing account at the KG : The posting of losses on an account together with the posting of withdrawable and non-withdrawable profits leads to an equity-related "infection" of the entire account. This means that even with a positive balance, there is no direct right to claim, but the withdrawal restrictions of Section 122 UGB apply.

Three decisions on foundation law : (1) The legal qualification of donations from private foundations to beneficiaries (requirement of a donation to be notarized) remains open. (2) The powers of a foundation body that is not provided for by statute and that is autonomously created are based exclusively on the statutes. (3) The interpretation of a foundation deed is objective (normative); this also includes the question of beneficiary status.

Supreme Court in further decisions :

  • The very detailed deadline regulations for the preparation of the annual financial statements and the disclosure according to COVID-19-GesG do not allow an analogous application.
  • The Supreme Court seems to subordinate the membership rights of each individual partner at least partially to the protection of tort law.
  • When registering a change in the limited liability company, the notarial act does not generally have to be submitted. Whether there are concerns about the correctness of the registration application is a question of the individual case.
  • The formal requirement under Section 76 (2) GmbHG relates to the obligation and disposition business. Any subsequent healing has no "retroactive" effect.
  • In addition to an opening balance sheet, an annual financial statement for the short financial year of the company on the reporting date of the dissolution is to be prepared.
  • The mere addition "in liquidation" to the company name does not justify the omission of the obligation to prepare the annual financial statements, because the addition in itself in no way excludes a (temporary) continuation or resumption of business activity.
  • Restrictions on internal relationships do not generally affect external relationships. This does not apply to transactions in which the third party was aware of the abuse of power of attorney and who knew that the managing director was violating an internal duty by concluding the transaction.