VwGH on Appointing Managers Responsible under Trade Law

Apr 14, 2023 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled that in matters of trade law a responsible representative cannot be appointed pursuant to Section 9(2) of the Austrian 1991 Administrative Penal Code (Verwaltungsstrafgesetz 1991, hereinafter VStG).

Insolvency proceedings were opened over the assets of an innkeeper, and the appellant was appointed as insolvency administrator. The inn was operated by the insolvency estate, whereby the insolvency administrator ex lege assumed the function of manager (Section 41(5) first sentence of the Austrian Trade Law, hereinafter Gewerbeordnung 1994, GewO).

The district administrative authority imposed an administrative fine of EUR 80 on the insolvency administrator because certain requirements of a legal notice had not been complied with, as was found during an inspection.

The insolvency administrator objected to this. She argued that as ex-lege manager she had commissioned the insolvency debtor to comply with the provisions of trade law and had therefore appointed an agent responsible for administrative penalties within the meaning of Section 9(2) of VStG.

The Administrative Court ruled in favour of the district administrative authority:

According to Section 9 (1) VStG, the person who is appointed to represent legal persons externally is responsible under administrative criminal law unless a responsible representative is appointed in accordance with Section 2. However, according to established case law, these regulations only apply subsidiarily.

Under Section 370(1) GewO, the manager under trade law is liable in terms of administrative criminal law. This is a special provision superseding Section 9 VStG. Section 9 only applies within the scope of the GewO if no manager under trade law was appointed for a legal entity at the time of the offence.

However, as soon as the insolvency administrator assumes the function of manager under trade law pursuant to Section 41(5) GewO, the insolvency administrator is only liable under administrative criminal law pursuant to Section 370(1) GewO and no longer according to Section 9(1) VStG. In this case, the right to appoint a responsible representative also becomes inapplicable.

Nevertheless, it is possible to appoint a different person as manager under Section 39(1) GewO.

VwGH Ra 2020/04/0075 (23.01.2023)