A prohibited deposit refund (Sections 82 and 83 GmbHG) exists if the shareholder is improved vis-à-vis other contractual partners of the GmbH as a result of his shareholding position and this is at the expense of the GmbH. The decisive factor is whether the transaction withstands an external settlement and would have been concluded in this way if no shareholder benefited from it. This depends not only on the specific terms of the transaction, but above all on whether such a transaction would have even been concluded with a non-corporate third party. The date of conclusion of the contract is decisive.
The GmbH managing director is liable for a violation of the prohibition of deposit refunds if he culpably neglected the due diligence of an ordinary businessman. This is to be assessed ex ante (at the time of action).
Supreme Court 26.6.2025, 17 Ob 8/25p
In the event of culpable insolvency procrastination, the managing director of a GmbH is subject to claims from two sides: On the one hand, the GmbH, represented by the insolvency administrator, can claim compensation for the loss of business in accordance with § 25 GmbHG. [remark: and also in the amount of payments made from company assets following the onset of insolvency: Section 25 (2) (2) GmbHG; OGH 6 Ob 164/16k, ecolex 2017/487 (J. Reich-Rohrwig); J. Reich-Rohrwig into Reich-Rohrwig/Reich-Rohrwig/Kinsky, Flexible Corporation, Rz 19.48f]
However, the insolvency administrator is not actively legitimized to claim the quota damage (i.e. the quota reduction for the period of culpable insolvency procrastination).
The legal materials of Section 69 (5) IO (KO) clearly had in mind that the insolvency administrator asserts the compensation claims due to the GmbH (in accordance with Section 25 GmbHG or Section 84 AktG) in insolvency, in this way replenishes the estate and thus ultimately prevents (or at least minimizes) quota damage by creditors. However, during insolvency proceedings, the creditor's claim is not transferred to the insolvency administrator.
Supreme Court 26.6.2025, 17 Ob 2/25f
According to established case law, shareholder resolutions can also be reached informally outside the general meeting if all shareholders agree on the merits. This also applies to the resolution on the appointment of a GmbH managing director. The preparation of minutes, as required by Section 40 (1) GmbHG, is not an effective requirement for a shareholder resolution.
Even though the sole shareholder had initially resigned from office as managing director, but then appears externally as managing director of the GmbH over a period of four and a half months, in particular signs official and legal declarations and acts of representation and has a managing director's salary paid out and also remains registered in the commercial register as managing director, this represents an implied reappointment as managing director.
Supreme Court 4.6.2025, 6 Ob 111/24b
According to Section 25 GmbHG, managing directors of GmbH are generally only liable to the company and not also to company creditors.
However, “external liability” of the managing director vis-à-vis creditors/contractual partners of the GmbH would be considered, for example, in the event of intentional immoral damage, criminal acts directed against company creditors, in the event of culpable infringement of (other) protection laws existing in the interest of company creditors or in the event of an encroachment on their absolutely protected rights.
In principle, the managing director is not liable to the company creditor for failure to comply with contractual obligations which only affect the company, because external liability of the managing director as a body always presupposes the violation of its own obligations and not only those of the company.
Supreme Court 29.4.2025, 1 Ob 53/25p
According to recent case law and parts of doctrine, a special right in accordance with Section 50 (4) GmbHG is any right of an individual, several or all shareholders established by the articles of association.
If — as here — the articles of association in the event of the transfer of shares — except to children or direct descendants — all individual grants shareholders a right of consent, this exceeds the right of consent regulated in accordance with Section 76 GmbHG [remark: The General Assembly would pass the approval resolution by a simple majority of votes; the individual minority shareholder alone could therefore not prevent approval.] and is to be qualified as a special right granted by the company agreement with equal advantage of all shareholders. An effective amendment to the articles of association, which limits the shareholders' right of consent with regard to the transfer of shares to stepchildren (and their descendants), requires the approval of each individual shareholder.
Innsbruck Higher Regional Court 16.1.2025, 1 R 143/24z
If, as a result of the merger of two corporations, a fruit participation right in a property subject to the Lower Austrian Property Act 2007 is transferred from the transferor to the acquiring company, this does not in principle result in a permit requirement within the meaning of Section 4 (2) NÖ GVG 2007. According to the legal material, a subjective intent to circumvent the facts would require a subjective attempt to circumvent the facts.
When the merger is entered in the commercial register, the assets and liabilities of the transferring company are transferred to the acquiring company, but this is with the exception of the civil ownership of the property of the transferring company subject to approval by the land authority. This “partial merger effect” probably applies not only to property, but also to other rights in rem such as fruit participation rights.
The special feature of the merger is that a corporation is terminated without the need for liquidation proceedings. The acquiring company replaces the transferring company in all legal respects. All rights and obligations, claims and liabilities are transferred — even in violation of the book registration principle — as a result of the termination of the acquired company without liquidation, regardless of whether they are known or not. The individual merged independent companies become a single legal entity.
Supreme Court 8.10.2024, 5 Ob 16/24z
After hA, a corporation loses its party capacity upon completion, which requires its lack of assets and (cumulatively) its deletion from the commercial register. Deleting them from the company register alone does not result in the loss of their party capacity. Rather, the corporation continues to exist as long as there are still active assets. Even if the deletion in the commercial register only has a declarative effect, it carries the presumption of lack of assets for now and until it is invalidated.
Such asset claims that preclude completion may include claims against former shareholders, managing directors, liquidators or third parties. The situation would be different if, as a result of litigation, the company was no longer able to take possession of assets, for example because its claims have already been seized. In fact, the pledged claim would not represent usable assets of the company. It must therefore be assets that can be exploited from a commercial and economic point of view and are suitable for satisfying creditors or, where appropriate, for distribution to shareholders. Assets in this sense are only what can be accounted for and used.
Supreme Court 3.7.2025, 6 Ob 92/25k
Both in order to protect the corporation itself and in the interest of creditor protection, the funds made available to the company as contributions in kind should correspond to the nominal capital specified in the contract and shown in the commercial register.
Just as, in the case of incorrect bank confirmation, the credit institution is denied the objection of lack of causality for the damage due to the particular standard purpose of bank liability and its membership in the creditor-protecting capital raising rules, this must also apply to the property appraiser: because an incorrect assessment of the law as a substantive control body for the review of Tangible value of contributions in kind employed at The confirmation of the value, in the same way as the incorrect bank confirmation from the credit institution, results in a certain amount of share capital being registered even though the company has not received this value and it — and subsequently its creditors — lacks the value of the difference between incorrect valuation and real capital contributed. Therefore, the liability of the deposit assessor in kind is not to be treated differently from the liability of the credit institution in accordance with Section 10 (3) GmbHG and Section 29 (1) AktG, so that the difference liability on the causality considerations made cannot apply here either. The property inspector, who has unlawfully and (negligently) culpably (vastly) overstated the contribution in kind, must therefore be responsible to the company for the difference between the overconfirmed value of the contribution in kind and the actual lower value of the contribution in kind in the sense of differential liability.
Supreme Court 30.4.2025, 6 Ob 214/24z
Each GmbH shareholder is subject to a duty of loyalty towards the company and the co-shareholders. This is based on the principles of good faith, fair communication and morality. The loyalty obligation of the shareholder of a GmbH requires appropriate consideration of the legitimate interests of the co-shareholders when exercising voting rights in the general meeting. Accordingly, interference with shareholders' membership rights must be measured against the criteria of necessity and expediency. When assessing the loyalty obligations of shareholders, it should be noted that the degree of personalization of the company increases the intensity of the loyalty obligations to be met.
An obligation to approve general meeting resolutions resulting from the fiduciary obligation is ultima ratio and presupposes that the resolution is absolutely necessary and reasonable for the reluctant shareholders.
Unfiduciary voting may result in the shareholder resolution being appealable.
The claim to information as an individual right of GmbH shareholders generally includes all matters of the company, i.e. all legal and social relationships within the GmbH and vis-à-vis third parties. For this reason, the matters of affiliated companies that are objectively relevant to the GmbH are also subject to the information rights of the shareholders. The partner must describe the information required of him in detail and explain his legitimate interest under company law.
The GmbH's obligation to provide information and thus the right of its shareholders to provide information regarding affiliated companies is limited where the GmbH's right to provide information in the other company ends.
The dismissal of a shareholder-managing director may violate fiduciary obligations. Such fiduciary obligations, which make the dismissal appear unjustified in the specific situation, may result from agreements between shareholders of a highly personalized company. Dismissal due to the objective risk that the decisions required for the GmbH by the joint representative managing directors can no longer be taken due to tensions and conflicts or will be delayed and for de-escalation is objectively justified.
Supreme Court 18.2.2025, 6 Ob 65/24p
The bank is liable for the (in) accuracy of its confirmation in accordance with Section 10 Paragraph 3 GmbHG [Section 29 Paragraph 1, Section 49 Paragraph 3 AktG] if the confirmation was already questionable at the time it was issued.
It is decisive whether the GmbH/AG uses the funds as a parent investment”freely available“when new funds were added to it in the name of the shareholders. This “free disposal” of the management/board of directors over the contributed funds is not the case if the money had previously been withdrawn from the bank account in a way that diminished the company's assets, i.e. the payment came from the company's assets.
When (cash) withdrawing and (cash) depositing the same amount within less than three minutes, it must force itself on the bank that these are the same funds, i.e. money derived from the company's assets. In this case, the issuance of the incorrect bank confirmation constitutes a clearly negligent breach of care, meaning that the bank is liable for the ineffectively deposited funds.
Supreme Court 20.9.2024, 6 Ob 120/24a
The umbrella term “personal transaction” includes double representation — i.e. when a representative concludes a transaction for two representatives for whom he is authorized to represent — as well as self-contracting in the narrower sense.
Transactions made by the GmbH managing director are only permitted insofar as there is no risk of conflict of interest and the intention is expressed by the managing director in such a way that the declaration is indisputable and cannot be withdrawn uncontrollably. Self-transactions are permitted if the transaction only benefits the person represented, there is no risk or damage to the person represented, or if the person represented agrees.
In the case of double representation, there is no risk of conflict of interest if the endangered representative has agreed to the transaction — either by prior consent or by subsequent approval. The approval or approval cannot again be given by the representative (RS0019350). When it comes to exercising the power of representation of the managing director of a GmbH, all other managing directors must agree. If only one managing director is appointed, either a possible supervisory board or the shareholders themselves must approve it.
Insofar as there is a risk of conflict of interest, the ruler acts without power of representation in the case of double representation as well as in the case of self-contracting IEs (RS0019621; RS0038756).
Supreme Court 11.12.2024, 6 Ob 55/24t
The taking of disproportionate or even existence-threatening risks by the managing director may in individual cases give rise to a misuse of discretion or an overreach of discretion. However, the decision to leave most of the equity in business accounts with one's own bank does not entail a disproportionate risk of loss. The managing director does not have to foresee the general risk that the long-standing house bank could lapse into insolvency as a concrete possibility when making an assessment decision.
Even if the requirements of the Business Judgement Rule as a “Safe Harbor” are not met, the managing director is not automatically liable. However, this may occur if the conduct of the managing director is classified as contrary to due diligence in individual cases.
According to the objective standard of care, the managing director owes the due diligence that an ordinary businessman in a responsible management position must maintain in an independent fiduciary exercise of external financial interests. The law does not provide for an increased standard of care for a departmental managing director.
Supreme Court 16.12.2024, 9 OBa 88/24t
As an asset manager and representative of the estate, the estate curator must protect the interests of the estate, but he acts materially for the subsequent true heir (RS0007737).
The measures and acts of representation required by the probate curator for ordinary administration generally also include the exercise of voting rights associated with a share of the estate (8 Ob 501/93; 1 Ob 245/12d).
Supreme Court 26.4.2022, 2 Ob 158/21f
If a managing director objects to the management actions of the other managing director in accordance with Section 21 (2) GmbHG, this only concerns the internal relationship of the GmbH. Conversely, as is clear from Section 20 (2) GmbHG, the internal objection of a managing director has no consequences in the external relationship. However, an agreement may be ineffective due to collusive cooperation between a managing director of the GmbH and her husband.
Supreme Court 12.5.2021, 6 Ob 33/21b
A violation of capital maintenance principles by the GmbH may also exist if the benefits to third parties benefit the shareholder in terms of economic results; in particular if the payment to the third party also represents a benefit to the shareholder or the third party takes up a position that is equivalent to that of a shareholder.
The prohibition of deposit refunds also applies to former shareholders, provided that the service is provided with regard to the former shareholding.
Supreme Court 15.12.2014, 6 Ob 14/14y
A violation of capital maintenance regulations on the part of the GmbH may also result in the GmbH ordering collateral for a debt of the shareholder in favour of its creditor (third party). However, the appointment of security for the shareholder's debt is permitted if the company receives appropriate consideration, as is usual in comparable banking transactions.
If there is no objective value equivalence, a concealed deposit refund can be justified in individual cases on the basis that there are special operating reasons in the interest of the company if this is covered by the foreign settlement formula to the effect that a carefully acting managing director would also have concluded the transaction with an outsider. This is only the case if the collateral payment is offset by an equivalent operational advantage of the collateral GmbH. This operational advantage can also result from economic cooperation.
If there are such special operational reasons, the admissibility of an assumption of liability may be precluded by the fact that it poses a particular risk that may even threaten your existence.
The legal addressees of the prohibition of deposit refunds are generally the GmbH and the shareholders. However, the prohibition of deposit refunds also applies to former shareholders, provided that the service is provided with regard to their former shareholder status. In addition, benefits to third parties are attributable to a shareholder, for example when the benefit to the third party also represents a benefit to the shareholder or the third party assumes a position that is equivalent to that of a shareholder. In any case, this includes services to third parties which benefit the shareholder in terms of economic results (for example to a company in which the shareholder has a stake). The restitution claim under Section 83 (1) GmbHG therefore also exists against a beneficiary indirect partner and beneficial owner.
Supreme Court 22.12.2021, 6 Ob 89/21p
The division of a GmbH share — excluding the case of inheritance — is only permitted in accordance with Section 79 (1) GmbHG if the shareholders are permitted to assign parts of a share in the articles of association.
The main purpose of this provision is to protect the interests of shareholders. Therefore, if all shareholders agree or participate in a specific partial assignment of a share of a business share, the partial assignment is effective regardless of the absence of a provision in the articles of association allowing the division. However, the approval of the shareholders must be given for the specific partial assignment. General approval would not be sufficient without an amendment to the articles of association.
Supreme Court 6.11.2024, 6 Ob 224/23v
The GmbH is a legal entity different from the shareholders. This also applies to one-person GmbH. Any contractual road safety obligations of the GmbH — here: Wiener Linien for spreading the sidewalk in the event of black ice — vis-à-vis the plaintiff under a contract of carriage therefore do not apply to the sole shareholder of the GmbH.
Supreme Court 30.5.2022, 2 Ob 67/22z
[remark: This decision also indicates that the plaintiff did not make any factual submissions that could exceptionally justify liability enforcement, such as qualified undercapitalization or de facto management.]
In the case of collective representation of two GmbH managing directors, the external facts establishing the prima facie power of attorney must be all Joint representatives are set up together because this is the only way to achieve the purpose of the collective representation power. The lack of involvement of one managing director cannot be replaced by the conduct of the other (RS0017976 [T14]).
However, acting without authority can be approved by the person represented in retrospect. The acceptance of a conclusive approval presupposes that the representative or the third party may rely on it under the specific circumstances and has actually trusted that the representative agrees with the transaction concluded without authority. There must be no reasonable reason for the representative or the third party to doubt the expression of such will (see RS0014374).
Supreme Court 17.10.2023, 4 Ob 97/23b
remark: Each of the managing directors can also authorize the other managing director to conclude the transaction alone (§ 28 GmbHG).
If a GmbH shareholder guarantees the loan granted to the GmbH by a third party or orders a deposit or provides comparable security, he cannot — if the loan was equity-replacing within the meaning of Section 1 EKEG — if he pays the third-party debt, take recourse against the GmbH as long as the GmbH is not restructured.
Supreme Court 25.9.2023, 17 Ob 18/23f
As a condition for issuing a preliminary injunction, imminent irretrievable (and irreparable) damage is required; this impending damage must affect either the claimant (Section 381 Z 2 EO) or the company (Section 42 (4) GmbHG).
According to case law, damage is irretrievable if there is a disadvantage in assets, rights or persons and the return to the previous state is not feasible and compensation either cannot be paid or the payment of the monetary compensation is not entirely adequate. The concept of irretrievable damage must not be interpreted too broadly; not every abstract or theoretical possibility of causing irretrievable damage constitutes a risk of claim.
Supreme Court 20.12.2023, 6 Ob 215/23w
In the event of bankruptcy of the GmbH shareholder, his voting rights are exercised by the estate manager, insofar as matters relating to the estate are concerned. The appointment or dismissal of a managing director of the GmbH is generally not part of the legal acts relating to the bankruptcy estate of the partner. Voting rights are therefore not to be exercised by the estate manager, but by the debtor as a shareholder.
Supreme Court 17.1.2024, 6 Ob 62/23w
As an expert, the auditor must carefully audit the annual financial statements. The necessary diligence must be measured against professional standards and the abstract objective of the audit with regard to presenting the financial position and earnings of the audited company as faithfully as possible. What is decisive is which audit standard is normally required to meet the legal purpose of the audit.
It is not the task of the auditor to review the opinions of other experts with regard to the valuation of contributions in kind. He is only required to carry out a plausibility check.
Supreme Court 18.3.2024, 9 Ob 7/23d
If the company bodies fail to disclose the annual financial statements and the otherwise required documents within nine months of the balance sheet date, the commercial register court does not have to issue an improvement order to the bodies in accordance with Section 17 FBG, but must immediately proceed with the imposition of a compulsory sentence in accordance with Section 24 FBG.
OGH 20.3.2024, 6 Ob 21/24t
Compulsory sentences under Section 283 UGB are, by their nature, a bending sentence to enforce recurring measures, namely to induce the person obliged to disclose the annual financial statements to act in accordance with the rules.
If compulsory penalties are imposed on both the company and the managing directors in accordance with Section 283 UGB, this is not a violation of the prohibition of double punishment. In this case, the multiple imposition of fines is merely the result of the fact that several legal entities subject to action have failed to comply with their legal obligations.
Supreme Court 20.12.2023, 6 Ob 29/23t
The court-appointed emergency managing director (§ 15a GmbHG) only loses his function as a result of a court removal order before the emergency of representation ceases. The mere fact that the emergency manager no longer wants to perform this function is no valid reason for his dismissal.
An unforeseeable impairment of his state of health following his appointment as emergency managing director, which means that he cannot (anymore) perform this function in addition to his other professional activity without damage to his health, constitutes sufficient reason for dismissal.
Supreme Court 23.10.2023, 6 Ob 183/23i
The acceptance of an obligation to approve a shareholder resolution arising from fiduciary duties vis-à-vis the GmbH is usually only a last resort. The resolution must be absolutely necessary in the interest of the company and also reasonable for the reluctant partner.
Whether this is the case depends on the circumstances of the individual case, the structure of the company and the relationship between the shareholders.
Unfiduciary voting may result in the contestability of a shareholder resolution.
Supreme Court 18.6.2024, 6 Ob 64/24s
The body of an association — and probably also in the case of GmbH and public limited company — neglects its duties when, among other things, as simultaneous managing director of a subsidiary, it withholds from the board or management of the association (the parent company) and its auditors the financial reports and documents relating to the negative financial management of the subsidiary and admits that the financial results of previous years”embellished“is
Supreme Court 26.6.2024, 8 Ob 117/23y
Preliminary remark: Both Section 63 (3) GmbHG and Section 60 AktG contain a set-off prohibition, according to which the shareholder/shareholder cannot offset his payment obligation to pay the deposit against a claim against the GmbH/AG through compensation. This offsetting prohibition is relaxed in the case law under the following circumstances:
The company may (with a common deposit claim) only offset against a claim from the shareholder if this claim by the shareholder is undisputed and the company receives full performance.
The plea of offsetting in civil proceedings is a conditional declaration which only becomes effective if and only if the court affirms the existence of the main claim. If this offsetting statement becomes effective, the main claim against which the offsetting is to be set off must therefore be regarded as undisputed. These principles also apply to restitution claims made by the company arising from deposit recovery in accordance with Section 83 (1) GmbHG, which it uses as a counterclaim in the process.
Supreme Court 26.4.2024, 6 Ob 136/23b
If a GmbH grants its shareholder — a private foundation — a residential right to use its property free of charge, this violates the prohibition on deposit refunds. The statute of limitations for compensation claims against the managing director, who has damaged the GmbH in this way, is suspended in accordance with Section 1494 of the Austrian Civil Code due to the conflict of interest to which the managing director subject to compensation is subject, as long as the GmbH does not appoint at least so many other managing directors that they can effectively represent the GmbH without the managing director liable for compensation.
Supreme Court 20.12.2023, 6 Ob 170/23b
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