Austrian OGH Blocks Early Transfer of Shares in Company Capital Increase

Feb 12, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has determined that shares resulting from a future capital increase are only recognized upon the registration of the increase in the commercial register. Until this entry occurs, neither the shares nor any related membership rights may be transferred. The purpose of a commercial register is to ensure a comprehensive and accurate record of corporate legal relationships. In contrast to a and register, it is not permissible to directly register a ‘second-next’ shareholder without first recording the actual transferee.

In the case at hand, during a capital increase at a limited liability company (GmbH), the company resolved to expand the share capital by EUR 500 and specifically admitted a designated third party—a limited partner of the parent limited partnership (hereinafter KG)—to assume the new share capital, thereby excluding the subscription rights of the existing sole shareholder. The prior sole shareholder indicated an intention to acquire the shares through a combination of cash and non-cash contributions but subsequently transferred their claim to the new share (‘expectant right’) to the KG without remuneration on the same day. The objective was for the KG, rather than the initial acquirer, to be registered as a shareholder in the commercial register. The OGH was tasked with determining the permissibility of such an arrangement.

The actual raising of capital and liability for differences under Section 10a of the Austrian Limited Liabilities Companies Act (Gesetz betreffend Gesellschaften mit beschränkter Haftung, hereinafter GmbHG), in conjunction with Sections 52(6) and 65 ff of the GmbHG, are of central importance here. These provisions serve to protect a company and its creditors. These liability rules cannot be circumvented by contractual arrangements, particularly not by the transfer of a mere contingent right.

The OGH emphasised that, in the case of a capital increase, the declaration of acquisition is not merely a contractual transaction, but a legal corporate transaction. The acquirer of the capital contribution and the new shareholder must be the same person. In the event of a third-party takeover, Section 52(5) of the GmbHG also stipulates that the acquirer must declare their accession to the company. If this accession is missing, there is no valid takeover agreement.

In the case at hand, a review of all the contracts revealed that the named transferee did not want to become a shareholder from the outset. The takeover declaration did not involve joining the company and expressly excluded liability and warranty. Consequently, it did not implement the resolution to increase the capital and did not establish an effective original acquisition or a transferable entitlement to a share in the company. A transfer to the KG was therefore legally impossible.

As a transferee becomes a shareholder, albeit temporarily, they must be entered in the commercial register accordingly. Circumventing the GmbHG’s liability and disclosure requirements is not permitted.

OGH 6 Ob 141/25s (26 November 2025)