Attendance quorum and contestation (OGH 28.08.2013, 6 Ob 59/13i)
General meeting despite incorrect convocation (OGH 23.10.2015, 6 Ob 65/15z)
GmbH articles of association curing a formal defect (OGH 23.02.2016, 6 Ob 207/15g)
Option agreement – assignment of a GmbH share (OGH 26.11.2015, 6 Ob 215/15h)
Liability of the managing director of a GmbH (OGH 31.07.2015, 6 Ob 139/15g)
No continuation of a dissolved company (OGH 19.03.2015, 6 OB 10/15m)
Limitation period for claims for compensation (OGH 23.02.2016, 6 Ob 171/15p)
Excursus GewO
Attendance quorum and avoidance (OGH 28.08.2013, 6 Ob 59/13i)
If a shareholder is duly invited to the general meeting but does not attend the general meeting and therefore does not raise an objection, he is not entitled to bring an action for avoidance. This also applies if statutory or contractual minimum attendance quorums were violated when a general meeting resolution was passed.
General meeting despite incorrect convocation (OGH 23.10.2015, 6 Ob 65/15z)
If, contrary to Section 36 GmbHG, the general meeting is not convened by the managing director of the company but by shareholders who hold a majority of the company shares, this does not constitute an absolutely void resolution. This lack of convocation represents an irrelevant defect within the meaning of the relevance theory, as neither the shareholder’s information nor participation rights are violated. In the case in question, the contesting shareholder not only knew about the general meeting, but also attended it and objected to both the dismissal as managing director and the appointment of the new managing director.
GmbH articles of association curing a lack of form (OGH 23.02.2016, 6 Ob 207/15g)
A lack of form in the articles of association of a GmbH is cured by the legally binding entry in the commercial register, which is intended to protect legal transactions. In the case in question, the notary’s certification of the formal requirements was incorrect. This circumstance should not mean that the validity of the articles of association can be disputed years later.
Option agreement – assignment of a GmbH share (OGH 26.11.2015, 6 Ob 215/15h)
If there are several references in the option agreement to a notarized assignment agreement still to be concluded, the wording in the option agreement that the GmbH has the right to “demand” the assignment of the share and to “take up” the share must be understood to mean that the transfer of the share does not take place through a unilateral declaration by the GmbH, but that the conclusion of an assignment agreement is still required.
Liability of the managing director of a GmbH (OGH 31.07.2015, 6 Ob 139/15g)
The provision of Section 25 GmbHG is a mandatory provision, meaning that it applies to all managing directors regardless of the internal structure of their legal relationship with the company. § Section 25 GmbHG therefore excludes the application of the DHG for those employees of a GmbH who are also its managing directors. Any agreement that would exclude a managing director from any involvement in the management of the company is invalid from the outset. Even a conspicuously low remuneration – at best indicating the mere status of a “straw man” – does not release the managing director from his obligations under company law. Failure to monitor the financial situation of the company (over-indebtedness and insolvency) is the responsibility of the managing director, so that he is liable pursuant to § 25 para. 3 no. 2 GmbHG, regardless of whether he actually exercised his function as a director or limited himself to the role of a straw man. An internal allocation of tasks between the managing director and a third party acting as a de facto managing director cannot exculpate the managing director in this respect.
No continuation of a dissolved company (OGH 19.03.2015, 6 OB 10/15m)
A dissolved company cannot be continued, not even in the course of a supplementary liquidation. In the case of a corporation that has already been dissolved pursuant to Section 40 FBG due to a lack of assets, there is no possibility of continuation. If the existence of assets is established after the deletion, a supplementary liquidation must be carried out in accordance with § 40 para. 4 FBG.
Limitation period for compensation claims (OGH 23.02.2016, 6 Ob 171/15p)
The five-year limitation period of Section 25 para. 6 GmbHG applies analogously to compensation claims of a GmbH & Co KG against the managing director of the general partner company.
Excursus GewO:
If a request is sent to a company as a trader in accordance with § 91 Para. 2 GewO, swift action is required to prevent the withdrawal of the trade license. The first step is to check whether the unreliable shareholder actually has a significant influence on the company and what this influence is based on. The shareholder in question must then be removed within the deadline set by the authorities so that they no longer have a significant influence. The impending withdrawal of the company’s business license, for example, constitutes good cause to remove the “unreliable” shareholder’s ability to exert influence. This important reason must be explicitly agreed. In this respect, it is advisable to provide for an exclusion option in the articles of association for good cause, which defines the impending removal pursuant to § 91 para. 2 GewO 1994 as good cause to avoid ambiguity and also enables a quick partial exclusion.