Jeannée Mikula & Partner Rechtsanwälte obtained an appropriate solution from the Supreme Court for limited liability companies that are forced to resort to the court appointment of a liquidator.

It is not uncommon for the liquidation of a GmbH to come to a standstill because the necessary measures are not taken. In this case, the GmbH Act gives shareholders the option of applying to the Commercial Court of Vienna for the appointment of another liquidator in addition to or in place of the previous liquidator. However, only shareholders whose capital contributions reach 10% of the share capital, the nominal amount of EUR 700,000 or a lower amount specified in the articles of association are entitled to file an application. An application must also be made for good cause.

However, it has not yet been clarified how to proceed if the Commercial Court appoints a new liquidator as requested and an appeal against the decision is lodged with the Higher Regional Court. Since the Non-Contentious Proceedings Act grants a suspensive effect to an appeal lodged, in the absence of a ruling to the contrary, it would have to be assumed prima vista that the newly appointed liquidator may only act on behalf of the company once the decision of the Higher Regional Court becomes legally effective.

It is obvious that this solution is unsatisfactory insofar as appeal decisions by the higher regional courts are often only received after several months, the liquidator acting in breach of duty is likely to continue to represent the company externally in the meantime and companies are usually dependent on being able to act (again) quickly anyway. Finally, an application pursuant to § 89 para. 2 GmbHG is usually an urgent and emergency measure that cannot be delayed.

Jeannée Mikula & Partner Rechtsanwälte has now obtained an appropriate solution from the Supreme Court.

In the case in question, a lawyer was appointed as court-appointed liquidator in addition to the previous liquidator on the basis of an application pursuant to Section 89 (2) GmbHG. He was granted sole power of representation, while the previous liquidator’s power of representation was restricted to the effect that she may only represent the company jointly with the court-appointed liquidator. An appeal was lodged against the decision.

As the liquidator subsequently took over the legal representation of the GmbH in question himself, he dissolved the power of attorney relationship with the company’s previous representative, who had also been appointed by the liquidator who had acted in breach of duty. After the appeal was lodged in the proceedings pursuant to § 89 Para. 2 GmbHG, but before a final decision was made by the Higher Regional Court, the former legal representative of the GmbH concerned lodged an appeal in other proceedings that were already pending.

The Supreme Court therefore had to deal with the question of whether the previous representative was authorized to file the (second) appeal or whether the newly appointed liquidator was already authorized to act, the termination of the power of attorney was effective and the appeal should therefore not have been filed.

The lawyer, who had lodged the appeal despite the termination of the power of attorney, argued that an appeal in non-contentious proceedings has suspensive effect and that the decision was not granted provisional binding force pursuant to Section 44 of the Non-Contentious Proceedings Act.

We argued against this with an analogy to stock corporation law and the case law on private foundations: According to Section 75 (4) AktG, the revocation of the appointment of members of the management board of a stock corporation pronounced by the supervisory board takes effect immediately. Similarly, the Supreme Court has already ruled on private foundations that the dismissal of management board members has immediate effect, also because such dismissals are usually urgent and emergency measures that cannot be delayed.

The Supreme Court fully endorsed these arguments and ruled that the appointment of a liquidator pursuant to § 89 para. 2 GmbHG is also immediately effective for the reasons stated.

The appeal by the company’s former lawyer in the rejection proceedings was therefore dismissed. Incidentally, he was also liable for the costs – due to lack of authorization.

The decision is available in the Federal Legal Information System (RIS) both as a legal sentence (RS0132953) and in full (6 Ob 160/19a).