- In a decision-making situation, there is not necessarily only one single correct alternative. Multiple, even opposing, courses of action can be consistent with the duty of care. The question of whether there has been a breach of the duty of care must always be assessed based on an ex-ante perspective.
- The standard of care must not be set at an unattainable level. Liability for corporate officers is only to be affirmed if they blatantly exceed their margin of discretion, make an evidently incorrect business decision, or reach a decision that is completely indefensible.
- Even risky transactions do not give rise to liability if, at the time the transaction was entered into, there was a possibility or a reasonable likelihood that it would prove beneficial to the company. It must be expected that a measure may also turn out to be unfavorable for the company.
- Note: This case concerned the extension of a Swiss franc bank loan by a limited liability company (GmbH), for which the GmbH had pledged a euro bank deposit. Due to the long-standing stability of the Swiss franc against the euro, the GmbH's managing directors and the bank's decision-makers did not anticipate the sudden and unforeseeable collapse of the euro exchange rate that occurred on January 15, 2015. The defendant managing directors and the bank's decision-makers hoped for a (speedy) recovery of the exchange rate and anticipated a falling franc rate against the euro, which would have reduced the GmbH's liabilities to the lending bank. Stop-loss orders recommended by the bank were intended to minimize the exchange rate risk for the GmbH, an assumption also shared by the lending bank.
- The defendant managing directors had to make the business decision of whether to realize the GmbH's existing exchange rate losses by repaying the Swiss franc loan, or whether to extend the loan to take advantage of the possibility—also viewed positively by the advising bank staff—of an exchange rate recovery, thereby reducing the total credit obligation (including further credit costs). (….)
- Against this background, the appellate court reasonably concluded that the defendants' decision did not violate the applicable standard of care. The fact that the measure was not "risk-free" does not preclude this assessment.
- The fact that the Business Judgment Rule was only codified in Section 25 (1a) of the GmbH Act by the 2015 Criminal Law Amendment Act, effective January 1, 2016, does not necessitate a correction of the appellate decision.
- Even before this provision came into force, it was consistent with Supreme Court (OGH) case law that corporate officers were granted a broad margin of discretion in their business decisions (6 Ob 58/20b, para 1.1; 6 Ob 160/15w, para 2). Therefore, in decision 6 Ob 58/20b, for example, the conduct of a supervisory board member occurring before January 1, 2016, was also assessed according to the criteria of the Business Judgment Rule (6 Ob 58/20b, para 1.4).
OGH February 24, 2026, 6 Ob 58/25k, GESplus 2026, 107
