Based on an appeal brought by a shareholder, the Federal Court of Justice ruled that the announcement of a coverage settlement with the D&O insurer was not sufficient to also pass a resolution at the general meeting to waive compensation claims against all incumbent and departing board members of Volkswagen AG. The additional information contained only in the Executive Board's report was not sufficient, as it was no longer part of the agenda stated in the meeting. The average shareholder did not have to expect that the information on a resolution to waive a large number of other board members would be included in the further information on the relevant agenda items.
The violation of the right to ask questions — the shareholder had requested information about the financial circumstances of the former members of the Management Board in order to exercise the shareholder rights as part of the decision to approve the liability settlements — was also essential for the deficiencies of the resolution: because information on the financial situation of the former members of the Management Board claimed was required at least to the extent that an informed decision by the shareholders about approval was required to approve this assessment to understand. Information alone on the respective income of the liable parties is not sufficient for this purpose, because it is not clear from this information to what extent any liability claims against former members of the Management Board would be covered by their own assets.
BGH 30.9.2025, II ZR 154/23
According to settled case law, a fully terminated corporation is generally no longer a party. However, it is incompatible with the fundamental right to fair proceedings under Article 6 ECHR if the defendant corporation could thwart a decision on the civil claim asserted by the plaintiff through legal changes in its sphere over which the plaintiff has no influence and which he is also unable to understand. If a corporation is cancelled during liabilities proceedings pending against it, the proceedings must be continued at the request of the plaintiff. If, on the other hand, the plaintiff does not seek to continue the proceedings against the deleted company, the action must be dismissed and the previous proceedings declared null and void; the costs must be mutually annulled in accordance with Section 51 (2) of the Code of Civil Procedure.
These principles also apply to associations that are dissolved as a result of liabilities brought against them.
Supreme Court 29.4.2025, 9 Ob 12/25t
If the management board of a public limited company consists of several members, the convocation of the general meeting of the joint stock company — unless otherwise provided in the articles of association — requires a management resolution passed in accordance with the decision-making rules for collegiate bodies (10 Ob 32/00d, RS0114610). If the general meeting is convened only by one member of the board of directors and not by the management board as a collegial body — i.e. without any involvement of the second board member — the resolutions adopted at the general meeting convened in this way are void; the nullity — as opposed to mere appealability — of the resolutions adopted when the general meeting is convened by just one member of the board of directors is therefore necessary because the general meeting could otherwise be bypassed by a group of shareholders (Supreme Court 10 Ob 32/00d).
According to its wording, Section 105 (1) sentence 1 AktG requires the Executive Board to form a decision on the convocation of the general meeting. The specifically required content of the Executive Board resolution and formal documentation are not regulated. If — as here — the appellant has not doubted the legally compliant announcement of the convocation and the legally protected interest of shareholders in attending the general meeting, in that they can become aware of the place and time of the holding of the AGM, is not endangered and the presence of all board members in the AGM also shows that the start time specified in the meeting was known to all board members and supported by their will, requires the meeting Review of the standards of Section 199 (1), Section 105 Paragraph 1 and Section 106 Z 1 AktG are not an interpretation with consequences of annulment of the decisions made in the AGM. The lower courts have therefore correctly denied nullity based on a lack of board resolution and also the eventual appeal of resolution under Section 195 (1) AktG due to lack of illegality.
Supreme Court 26.3.2025, 6 Ob 47/24s
If the articles of association of a joint stock company require approval by the general meeting for the sale of registered shares, the nomination of a replacement acquirer in accordance with Section 62 (3) last sentence of the AktG requires the corresponding approval by a resolution of the general meeting.
If the transfer of vinculated shares is subject to further conditions under the articles of association, their absence results in the pending invalidity of a transfer of shares that has been made nonetheless as long as the conditions can still be met, and to the final invalidity of the share transfer if the further requirements have not been met (OGH 8 Ob 547/92; RS0039034 [T1]).
Supreme Court 6.4.2022, 6 Ob 108/21g
The auditor of a banking joint stock company is liable to third parties for his culpably incorrect audit report if the third party invests funds with the bank in reliance on the reliability of the audit report and has suffered damage as a result. On the burden of allegation and proof.
Supreme Court 28.9.2021, 4 Ob 145/21h
Since the departure of Great Britain from the European Union, the English Limited Liability Company (Limited) with headquarters in Austria is no longer recognized as an English corporation but — if there are two or more shareholders — as a civil company of its shareholders; if there is only one shareholder, as an association with the sole proprietor. In the latter case, the assets of the Limited are transferred to the sole shareholder in accordance with Section 142 UGB. As the overall successor of the Limited, he enters civil proceedings pending in Austria.
Supreme Court 30.8.2023, 6 Ob 123/23s
The term “concealed (disguised) contribution in kind” means cash contributions which are linked to a legal transaction between the corporation and the depositing partner in terms of time and material in such a way that — while circumventing the incorporation rules — the success of a contribution in kind is achieved economically, for example by the corporation immediately repaying the cash to the shareholder as consideration for a service provided by the shareholder (RIS Justice RS0101 14160).
As a result, the contribution in kind agreement made outside the articles of association (and without compliance with the contribution in kind regulations) is ineffective against the company and the shareholder is not exempted from his (cash) deposit obligation (OGH 6 Ob 132/00f, SZ 73/130; 6 Ob 219/03d).
He must therefore — notwithstanding the view held in parts of the doctrine that the transaction leading to the concealed contribution in kind is void — to make the cash contribution once again because the first payment is denied the effect of performance. The Supreme Court is now also adopting the doctrine of concealed contribution in kind, which was previously expressly recognized only for the GmbH, for the public limited company.
Supreme Court 25.3.2014, 9 Ob 68/13k
Members of the board of directors of the joint stock company are classified as freelancers. They have to exercise the entrepreneurial function and are therefore not entitled to insolvency fees.
Supreme Court 24.3.2014, 8 Ob S 6/14m
Members of the Board of Management are liable for losses arising from interest rate derivative transactions that are not covered by the object of the joint stock company. Advantage transfer of gains from individual of these interest rate derivative transactions.
BGH 15.1.2013 — II ZR 90/11, ecolex 2014/101, 249 (with comment by Johannes Reich-Rohrwig)
Important reasons for dismissal within the meaning of Section 75 AktG are not always congruent with reasons for dismissal within the meaning of Section 27 AngG.
The lack of openness (breach of loyalty) vis-à-vis the Supervisory Board also results in a gross breach of duty by the member of the Management Board, which may entitle him to dismiss and dismiss him. The relevant gross breach of duty is derived from the fact that, in accordance with Section 95 (2) AktG, the Supervisory Board is entitled to request a report from the Management Board on the company's affairs at any time (RS0112071). This reporting obligation results in the obligation of the member of the Management Board to report objectively, clearly structured, concisely and completely on their own initiative whenever the responsibility of the Supervisory Board is affected.
A request for dismissal by third parties (“dismissal due to pressure from third parties”) can only constitute an important reason for dismissal if the existence of the company is at risk or in the event of imminent serious damage to the AG.
According to German case law, “dismissal under pressure from third parties” is an even stricter standard than “dismissal under pressure from third parties.”
Supreme Court 20.12.2023, 6 Ob 47/23 i
The task of the supervisory board is to supervise management. The Supervisory Board is neither superior to the managing directors nor is it responsible for the “overall management” of the company. The duties of the Supervisory Board are essentially limited to monitoring the management of the Executive Board in the past and with foresight, as well as to its legality, expediency and efficiency.
The main means of monitoring by the Supervisory Board is information provided by the Management Board. As a rule, the Supervisory Board may rely on the accuracy of the information provided to it. However, the Supervisory Board is required to check plausibility and must ensure that any inconsistencies are clarified.
Supervisory Board members are liable for the lack of care that can be required of an ordinary member of the Supervisory Board due to the particular situation of the individual case. Supervisory board members must have a greater level of experience and knowledge in business and financial matters than an average businessman; they must be able to identify difficult legal and economic circumstances and to assess their impact on the company. All members of the Supervisory Board are therefore subject to an increased objective standard of care. The standard of care to be met is determined by the typical and therefore objectively determined abilities of an ordinary member of the Supervisory Board. On the other hand, there is regularly no liability for exceptional skills and extraordinary diligence.
Supreme Court 27.8.2024, 6 Ob 142/23k
Sections 65ff AktG regulate the acquisition of own shares by a joint stock company and limit this to 10% of the share capital. This also includes the pledging of own shares. The pledging of own shares is therefore also subject to the 10% threshold (Section 65b (1) AktG). The same applies to the acquisition and pledge of shares in a legal entity whose assets consist primarily of shares in the acquiring AG, such as employee participation companies. Sections 65ff AktG also apply here to avoid circumvention, regardless of a specific intent to circumvent. The shares pledged must in principle be included in calculating the 10% threshold in Section 65 (2) AktG.
Unlike support for employees — which in this context also include senior employees — such support for board members is not privileged under Section 66a AktG.
The privilege of loans for the purpose of acquiring shares in accordance with Section 66a AktG does not affect the general prohibition of deposit refunds (Section 52 AktG). The granting of a loan may therefore violate this prohibition. However, when examining such an infringement in the context of an employee participation model, it is not necessary to make an “external comparison” with third parties, but — looking at the overall view — the operational justification of the support provided.
Supreme Court 21.2.2024, 6 Ob 42/23d
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