OGH on curatorship for GmbH shareholders
The Austrian Supreme Court (Oberster Gerichtshof, OGH) has decided that the mere fact that the mother and the children are shareholders does not in itself justify the appointment of a curator.
In the case at hand, the two minors as well as the mother and the two adult half-brothers are each 20% shareholders of a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) after the death of the father. Their shares are each worth many millions of euros. The mother is entitled to custody. A curator was appointed in particular to manage the company shares until the children reached the age of maturity. The conflict of interests was justified by the fact that the mother was also a shareholder in the GmbH.
After about two years, the mother applied for termination of the curatorship, as there was no material conflict of interests and there was no reason to fear that the interests of the minors would be endangered. Their interests could be adequately safeguarded by the court. The mother argued that there had been no cases of conflict since the appointment of the curatorship. It therefore amounted to a - costly - prophylactic curatorship.
The OGH ruled in favour of the mother.
According to Section 284 para 2 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the curator is to be removed upon application or ex officio if the prerequisites for his appointment have ceased to exist. Such a conflict of interest was initially considered possible, but the development of events did not confirm this concern.
According to the OGH, the possibility of a future conflict of interests, which is in no way concretely indicated, is not sufficient to justify the appointment of a curator solely on the basis of the joint partnership of mother and child. Such an appointment was only necessary in certain situations, for example in the case of pending amendments to the articles of association or ad hoc dissolution agreements.
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