OGH on the review procedure under the GesAusG

Jul 28, 2021 Benn-Ibler Rechtsanwälte

In the review procedure regarding the cash settlement for shareholders excluded under the Austrian Shareholders' Exclusion Act (Gesellschafter-Ausschlussgesetz, GesAusG), neither an execution title is to be created, nor is interest to be paid on the cash settlement to be decided. The sole purpose of the procedure is to decide on the appropriateness of the compensation.

In the case at hand, the general meeting of a public limited company decided to exclude some shareholders from the company ("squeeze-out") in accordance with the GesAusG. The cash compensation per share was determined by the company. The squeezed-out shareholders filed petitions for a review of the cash compensation, claiming that the court should set a higher cash compensation than the one granted.

Both the court of first instance and the court of appeal determined a higher cash settlement amount, the latter stating that the award had a declaratory and constructive effect, but that no payment was made to individual shareholders. It was also considered not to be necessary to decide on the interest to be paid on the claims.

In the appeal proceedings, the Supreme Court (Oberster Gerichtshof, OGH) finally had to clarify the question of whether an execution order had to be created in the review procedure for the cash settlement and whether a statement on interest was required.

The Supreme Court answered "no" to both of these questions. The review procedure is not aimed at the individual enforcement of claims, but has the overall purpose of answering the question of the adequacy of the cash compensation with effect for the company and all shareholders. Accordingly, the provisions on the review procedure were to be interpreted to the effect that no execution title in favor of the shareholders was to be created in the review procedure. The interest on the cash compensation also resulted directly from the law and was not the subject of the proceedings for the review of the cash compensation. It was therefore not necessary to rule on interest in the review procedure.

OGH 6 Ob 246/20z (12.05.2021)