OGH: general meeting minutes are no proof of power of representation

Apr 14, 2021 Benn-Ibler Rechtsanwälte

In several general meetings held by the plaintiff limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) as general meetings without a chairman, one of the two managing directors with collective representation authority (second managing director) requested, inter alia, the assertion of claims of the plaintiff against the first managing director and the appointment of the second managing director as the plaintiff's sole representative in legal proceedings.

The plaintiff company had two shareholders, each with a half share, which in turn were limited liability companies. The first shareholder was 98.5% owned by the first managing director and the second shareholder was solely owned by the second managing director.

The second shareholder voted in favor of these resolutions at the general meetings, while the first shareholder voted against them. The second shareholder stated in each case that the first shareholder was excluded from voting on the resolutions, which is why the resolution was validly passed.

Subsequently, the second managing director issued several transfer orders to the defendant bank, which did not carry out these orders because, as a matter of principle, only both managing directors could jointly dispose of this account and the first managing director refused his consent.

The plaintiff, represented by the second managing director, now requested that the defendant be obliged to carry out the transfer orders. Valid resolutions had been passed because the first shareholder had been excluded from voting on the resolutions, which was evident from the minutes of the general meeting. This superseded the valid collective representation of the company.

The lower courts dismissed the claim because the result of the resolution had not been determined. In the absence of a determination of the result, an action for a declaratory resolution should be brought in order to establish the result.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed the decisions of the lower courts. Minutes of the general meeting are not sufficient to prove the power of representation vis-à-vis the bank. Rather, in the absence of a resolution result, it could not be assumed that a resolution had been passed. Accordingly, the defendant did not have to execute the transfer orders.

OGH 6 Ob 148/20p (18.02.2021)