OGH: Non-competition clause of the managing sole shareholder

Dec 1, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshf, OGH) ruled on the question whether the managing sole shareholder is subject to the non-competition clause even if he holds part of the shares in trust.

The plaintiff was a company in the real estate sector. The sole shareholder and managing director was the first defendant, who, however, held 50 per cent of the shares for a trustor. In the trust agreement it was agreed, among other things, that future projects would be handled through the plaintiff or subsidiaries.

The first defendant purchased a property through the second defendant, a company of which he was the sole shareholder and managing director. The plaintiff demanded transfer and assignment of the property from the defendants and alleged a violation of the non-competition clause according to Section 24 of the Limited Liability Company Law (GmbH-Gesetz, GmbHG), as well as a prohibition of return of investments.

The OGH held that the first defendant was not subject to the non-competition clause of Sec. 24 GmbHG at all, since in the case of a managing sole shareholder there is no deviating corporate interest that could be protected. The trust agreement did not change this, as the distinction had to be made between shareholdings and trust relationships within the scope of the principle of separation.

Likewise, there is no prohibition on the return of investments, according to the OGH. In principle, the free transfer of businesses opportunities is also covered, but it must be condensed to such an extent that it would have a market value, i.e. a third party would pay a fee for the transfer of the business opportunity. According to the OGH, it is not sufficient for the criterion of market value if a company has already incurred expenses only with regard to acquisition opportunities, which was the case in the present case due to the due diligence review.

Consequently, the plaintiff could not base the claims on a non-competition clause or a prohibition of reimbursement.

OGH 6 Ob 71/21s (14.09.2021)