- Transactions conducted by a board member through a limited liability company (GmbH) that is 100% owned by them and for which they serve as managing director are to be considered transactions conducted by the board member "for their own account" regarding the violation of a prohibition in their employment contract against acquiring real estate within a 500-meter radius of the plaintiff stock corporation's property. This assessment does not require correction by the Supreme Court (cf. RS0061736).
- According to the prevailing legal opinion, the right of a stock corporation to assume transactions conducted by a board member for their own account under Section 79 (2), second case of the Stock Corporation Act (AktG), does not depend on the occurrence of damage to the corporation, nor is it required for this right that the corporation itself could have concluded the transaction or realized the same profit.
(Reference to J. Reich-Rohrwig/Winkler in Artmann/Karollus, AktG6 Section 79 marginal note 77f; Schimka in Napokol/Foglar-Deinhardstein/Pelinka, AktG Section 79 marginal note 38; Schimka/Leonhardsberger in Kalss/Frotz/Schörghofer, HdB Board and Management2 Chap. 7 marginal note 98; cf. regarding the Supreme Court: Milchrahm in WK UGB4 § 112 para. 99 and § 113 para. 19; Jabornek/Artmann in Artmann, UGB3 § 112 para. 26 and § 113 para. 3; Schauer in Kalss/Nowotny/Schauer, GesR2 para. 2/404).
- The right to information and disclosure in the event of a breach of competition is justified, firstly, by the fact that the scope and nature of the competitive activity are generally unknown to the company. Secondly, it is justified by the company's need for this information to make an informed choice between claiming damages or taking over the transaction (6 Ob 43/19w, legal reasoning 2.2.).
- Even if the company has not suffered any damage from the transactions alleged to be in breach of the prohibition by the board member, this does not preclude the existence of the right to information for the purpose of assessing whether to exercise the right of entry or for quantifying the claim for performance (cf. 6 Ob 43/19w, legal reasoning 3.1.).
- To determine the scope of the disclosure obligation, one must rely on customary business practices, depending on the nature of the transaction and the circumstances of the case (cf. 6 Ob 172/21v, legal reasoning 2.2.; RS0019529 [T1]).
- The content of the right to information must be determined on a case-by-case basis by referring to the substantive right to clarification being asserted (10 Ob 41/25i, legal reasoning 4.2.; 1 Ob 34/15d, legal reasoning 2.).
- The duty to provide information is therefore not the same in all cases, but must be assessed on a case-by-case basis according to its specific purpose (RS0035044 [T9]; cf. RS0019529 [T7]).
- The Supreme Court has, in any case, based its decision on the established case law that the temporal scope of a non-compete clause is limited to the duration of the corporate office (cf. RS0061729; RS0060115).
- It held that, for the purpose of assessing the right of entry under Section 79 (2), second case of the Stock Corporation Act (AktG), information and accounting regarding the progress of the property development project following the termination of the management board position were also required in this case (dismissal of the extraordinary appeal).
Supreme Court (OGH) 30.6.2026, 6 Ob 154/25b, JusGuide 2026/34/23793
