OGH: Shareholders Can Oppose Deletions from Commercial Register

Oct 13, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently granted shareholders party status in proceedings concerning the official deletion of a public limited company (GmbH) from the commercial register. As a result, they now have the right of appeal against the deletion decision.

In the original case, the Commercial Register Court deleted the public limited company from the commercial register pursuant to Section 40 of the Austrian Commercial Register Act (Firmenbuchgesetz, hereinafter FBG) on the grounds of an alleged lack of assets. The shareholders appealed, arguing that the company actually had assets that contradicted the official deletion.

The court of appeal dismissed the appeal on the grounds of lack of standing. According to previous case law, shareholders in commercial register proceedings had neither a right of notification pursuant to Section 18 FBG nor a right of appeal pursuant to Section 2(1)(3) of the Austrian Non-Contentious Proceedings Act (Außerstreitgesetz, hereinafter AußStrG).

The OGH does not share this view:

As a rule, shareholders are not registered in the commercial register. Therefore, the majority opinion is that shareholders have no right of appeal in the case of registration resolutions. This is justified by the fact that the powers of shareholders are precisely described in the law and are exercised at the general meeting. The shareholders can, at most, take action against the resolutions of the general meeting by means of special instruments under company law.

However, recent case law has given shareholders in a limited liability company a right of appeal against the decision to strike them off, as the cancellation of the company inevitably leads to the loss of their rights as shareholders entered in the commercial register. As a rule, the decision to delete a shareholder’s name does not affect a legal position entered in the commercial register. However, if the entry in the commercial register affects a legal interest which cannot (any longer) be effectively asserted in other proceedings (cf. Section 2 (1) no. 3 AußStrG), the right to appeal must also be recognised. This is the case in the official cancellation procedure. Here, the dissolution is effected directly by the court order. Therefore, a shareholder cannot be referred to proceedings against the underlying resolution of the general meeting.

OGH 6 Ob 53/23x (28 June 2023)