Austrian Supreme Court Once Again Rebuffs Commerzialbank Creditors

Nov 11, 2022 Benn-Ibler Rechtsanwälte

Once again, the Austrian Supreme Court (Oberster Gerichtshof, OGH) has found that claims for official liability by creditors of Commerzialbank Mattersburg are without merit. This round, the court primarily addressed the liability of the Austrian Audit Oversight Authority (Abschlussprüferaufsichtsbehörde, APAB).

The plaintiff had been a customer of Commerzialbank Mattersburg and, as a result of the insolvency proceedings, had lost all their existing deposits, with exception of the compensation from the legal deposit guarantee scheme. The plaintiff claimed damages against the Republic of Austria on the basis that the Financial Market Authority, the Austrian National Bank, the Austrian Federal Ministry of Finance, the Public Prosecutor's Office, and the Audit Oversight Authority had failed in their supervisory duties. For the first four authorities, the Supreme Court had already rejected liability of the Austrian Republic in an earlier decision (1 Ob 21 22x). This also applies to the APAB.

The plaintiff based their claim (also) on Section 16(1) of the Auditor Oversight Act (Abschlussprüfer-Aufsichtsgesetz, hereinafter APAG), which governs the oversight of auditors and audit firms. Section 16(1) APAG provides for general public liability of the federal government for damage caused by bodies and staff of the APAB in the performance of the tasks assigned to it. However, the Act contains the following limitation of liability: ‘Damages within the scope of this provision are those directly inflicted on legal entities that are subject to supervision under this federal law.’ According to the Supreme Court, lawmakers had limited the scope of liability in reaction to earlier decisions of the Supreme Court in the same way as it did for the Financial Market Authority. The intention was to exclude liability for damages that merely have a reflex effect of supervisory actions affecting the assets of third parties.

The Supreme Court found the wording of the Act to be unambiguous and likewise did not presume that the protective purpose of Article 16 (1) APAG also extends to pecuniary losses of individual creditors of an audited company.

OGH 1 Ob 140/22b (12 October 2022)