OGH on the entry in the commercial register of a resolution contestable due to defects in the convening of the meeting

Jan 13, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) had to clarify the question of whether a resolution that presents defects and is therefore contestable - not null and void - can be entered in the commercial register.

At the general meeting of a limited liability company (GmbH), the majority shareholder decided to appoint new managing directors simultaneously with the dismissal of the previous managing directors. The company objected to the registration of the new managing directors in the company register.

The company cited two defects in the resolution passed. On the one hand, that the general meeting was convened by the majority shareholder, contrary to Sec. 36 (1) GmbH Act (GmbHG). This right was only available to the executive board. On the other hand, the place of the general meeting was not IN, but BEFORE the mentioned office premises, as it was not possible to use the premises at that time.

The OGH stated that although both of the aforementioned defects could constitute defects in the convening or announcement of the meeting, they did not lead to the absolute nullity of the resolution. Rather, the resolution is merely contestable, which means that - in contrast to nullity - it must first be registered in the company register (no obstacle to registration). As long as no shareholder makes use of the possibility of a challenge, concerns about legality are not to be taken up by the company register. Only if a lawsuit is filed, the court has to interrupt the proceedings and wait for the outcome of the contestation proceedings.

OGH 6 Ob 168/20d (24.09.2020)