OGH: Liability of GmbH Shareholders for Notary Fees

Sept 22, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the mere approval of a resolution to increase a company’s capital does not lead to the joint and several liability of shareholders for notary fees.

The plaintiff, a notary, was instructed by the managing director of the first defendant, a limited company (GmbH), to carry out two capital increases. The GmbH did not pay the plaintiff’s fee notes addressed to the GmbH, and the plaintiff therefore claimed the amount from, inter alia, the fourth and fifth defendants (both minority shareholders of the GmbH). As participants in the legal transaction, they were liable under Section 12 of the Austrian Notaries’ Fees Act (Notariatstarifgesetz, hereinafter NTG). They had also been signatories to all the documents in connection with the capital increase.

The lower courts upheld the claim. The fourth and fifth defendants were participants in the transaction within the meaning of Section 12 NTG, as they were aware of the implementation of the capital increase, had attended the general meeting and signed the documents required for the capital increase. In doing so, they had expressed their consent to the transaction, which also included the notary’s activities.

This view was not shared by the OGH.

Pursuant to Section 12 NTG, all persons who have commissioned a notary to carry out notarial activities or who, with their consent, have been parties to a transaction which has been notarised, authenticated, or certified by a notary shall be subject to the payment of a fee.

‘To be party to’ within the meaning of Section 12 NTG also applies to those persons from whose conclusive behaviour it can be deduced that they have commissioned the notary to carry out the invoiced activity independently of an expressly given commission from another person. Here, however, a strict standard must be applied. It cannot be concluded beyond doubt that the fourth and fifth defendants wished to instruct the notary independently of the express instruction from the GmbH on the basis of the required participation as shareholders in the capital increase alone. However, the notary had to assume that the work commissioned was in the interests of the first defendant GmbH.

OGH 6 Ob 88/23v (28 June 2023)