Auditor Liability Confirmed by Austrian OGH

Jun 13, 2025 Benn-Ibler Rechtsanwälte

The liability of auditors in connection with contributions in kind continues to raise complex legal questions, particularly in the context of capital measures involving corporations. In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the responsibilities of a contributions-in-kind auditor in the course of a capital increase and provided important clarifications on the scope of liability.

An insolvency administrator sought damages of EUR 2 million from a limited liability company (GmbH, as the debtor) for breach of duty in connection with the confirmation of a contribution in kind relating to a capital increase by a public limited company (AG) which subsequently became insolvent. The defendant had been appointed as the auditor of contributions in kind in 2016. The contribution in kind (trademark rights) was valued at over EUR 3 million, but was actually worth only EUR 100,000 at most. The defendant auditor had relied almost exclusively on an external, inadequate expert opinion and had not carried out sufficient checks of her own.

The AG in question had been founded as a GmbH in 2016 and later became an AG as part of a capital increase and conversion. For the capital increase, the overvalued brands were provided as a contribution in kind.

The first instance and court of appeal upheld the claim. The court of appeal pronounced a fault-based guarantee liability of the auditor in accordance with Section 275 of the Austrian Commercial Code (Unternehmensgesetzbuch, hereinafter UGB) in conjunction with Section 42 of the Austrian Stock Corporation Act (Aktiengesetz, AktG). The defendant had not succeeded in proving the lack of fault. The OGH rejected the appeal.

Liability also for capital increases

The OGH clarified that the fault-based liability of the auditor of contributions in kind applies not only to the formation of companies, but also to capital increases. The decisive factor is whether the auditor culpably confirmed the stated value too high. An exact valuation at the time of the contribution would have been necessary, but was not available in the specific case. The OGH expressly left open the question of whether the auditor is only liable in the event of culpability or even regardless of culpability.

Differential liability without proof of causality

Similar to cash deposits made by credit institutions, the auditor is liable for the difference between the actual and confirmed value in cases of differential liability without proof of causality. Proof of a specific causal link between the misstatement and the incurred damage is not required. In the case at hand, the overstatement had enabled the plaintiff to take on further debt, resulting in losses for creditors.

No relief based on hypothetical scenarios

The defendant's objection that the capital increase would not have occurred at all if the valuation had been correct was rejected. The OGH emphasized that this would undermine creditor protection and contradict the purpose of the statutory provisions.

OGH 6 Ob 214/24z (30 April 2025)