- The appointment of a managing director for a GmbH establishes their status as an executive body only; it does not constitute a contract between the shareholders and the individual being appointed. The contractual or employment-related relationship between the GmbH and the managing director must be governed by a separate employment agreement. This employment agreement is concluded between the GmbH and the managing director.
- The employment agreement is generally concluded on behalf of the GmbH via a shareholder resolution (represented by the shareholders). Typically, the specific terms of the employment agreement are already determined in the appointment resolution passed by the shareholders. A separation of the authority to appoint and the authority to enter into an employment agreement cannot be assumed without a corresponding provision in the articles of association or a shareholder resolution.
- Therefore, according to prevailing legal opinion, the general meeting of shareholders is responsible for both. In this capacity, the shareholders represent the company in its dealings with the managing director.
- According to established case law, a GmbH shareholder resolution can also be reached informally outside of a general meeting if all shareholders are in agreement (RS0059949; RS0049358); this also applies to resolutions regarding the appointment of a managing director.
- The preparation of minutes as required by Section 40 (1) of the GmbH Act is not a requirement for the validity of the resolution.
OGH 22.4.2026, 6 Ob 13/25t, GesRZ 2026, 264; 30.6.2026, 6 Ob 112/25a
