Posts tagged #Corporate Law
All PostsKG Dissolution: Lack of assets alone is not sufficient
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with determining whether a limited partner may be required to consent to the removal of a GmbH & Co. KG (Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellsc...
Austria: OGH Ruling on Intra-Group Short-Term Deposit Refund Bans
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) determined that an intra-group short-term deposit of EUR 46 million may constitute a prohibited repayment of deposits if the arrangement does not adhere to arm’s length standards and is primarily...
GER: Electronic Signature Certification Sufficient for Commercial Register Filings
Corporate LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has examined whether handwritten signature may be certified via a basic electronic certificate, thereby clarifying legal requirements within this context. GmbH dissolution in co...
Austrian OGH Upholds Virtual AGMs and Shareholder Rights
Corporate LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the challenge of resolutions from a virtual general meeting that a shareholder contested due to alleged formal deficiencies and legal violations. The ma...
Auditor Liability Confirmed by Austrian OGH
Corporate LawThe liability of auditors in connection with contributions in kind continues to raise complex legal questions, particularly in the context of capital measures involving corporations. In a recent decision, the Austrian Supreme Court (Oberster Gerichts...
GER: Right to Deletion after Incorrect Commercial Register Entry
Corporate LawThe subjective rights of the shareholder are not affected by an incorrect entry in the commercial register. Deletion is not a right. The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) referred the shareholder concerned to the ci...
GER: Consumer Protection for Sole Shareholders?
Corporate LawWhen does a sole shareholder of a limited liability company (GmbH) undertaking joint and several liability for the company’s liabilities qualify as a consumer? Are they then entitled to the protective mechanisms of consumer loan law? These questions ...
GER: 'v.de AG' not Eligible for Company Name Registration
Corporate LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has recently ruled that the company name 'v.de AG' cannot be entered in the commercial register as it lacks the distinctive character required under Section 18(1) of the German ...
BGH: Managers’ Personal Data in Commercial Registers
Corporate LawAccording to the German Federal Court of Justice (Bundesgerichthof, hereinafter BGH), listing personal data of managing directors in the commercial register must be tolerated. Neither under national law nor under the GDPR is there a right to data del...
OGH: No Removal of Managing Director by Liquidator
Corporate Law Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that an insolvency administrator does not have the power to dismiss a managing director in the insolvency of a shareholder of a limited liability company (GmbH). The ori...
OGH: Statute of Limitations for Capital Repayments
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the suspension of the statute of limitations pursuant to Section 1494 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) applies analogo...
GER: Commercial Code Adjustments to Relieve Smaller Companies
Corporate LawThe German government has decided to raise the financial thresholds for accounting and financial reporting by nearly 25%. The aim is to reduce administrative burdens on small and medium-sized companies. For this purpose the German Federal Ministry of...
GER: Management Liability Limited by Internal Rules
Corporate LawAccording to the German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH), internal rules of responsibility in the management of a legal entity cannot lead to the abolition of liability under criminal and liability law, but they can lead ...
OGH: No temporary suspension of capital measures
Corporate LawAn application by a listed European Company (SE) for temporary suspension of capital measures has been rejected by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The situation was as follows: A limited company domiciled in Russia...
OGH: Waiver of Claims against GesbR Shareholders
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the following: If an action against a shareholder of a partnership under Austrian civil law (Gesellschaft bürgerlichen Rechts, hereinafter GesbR) is withdrawn by means o...
GER: BGH on GmbH Shareholders’ Statutory Voting Ban
Corporate LawShareholders of a German limited liability company (GmbH) who together hold all the shares in the company are prohibited from voting on a resolution to initiate legal proceedings against another company. No one may be a judge in his own case, accordi...
OGH: Shareholders Can Oppose Deletions from Commercial Register
Corporate LawThe 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 h...
OGH: Entrepreneurs Lose Right to Rely on Unlawful GTCs
Corporate LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) examined the European Court of Justice’s (ECJ) interpretation of the EEC Directive on Unfair Terms in Consumer Contracts. The case concerned an unjustified rescis...
OGH: Liability of GmbH Shareholders for Notary Fees
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the mere approval of a resolution to increase a company’s capital does not lead to the joint and several liability of shareholders for notary fees. The plaintiff, a...
GER: BGH on the Public Nature of the Commercial Register
Corporate LawThe information contained in the electronic commercial register at www.handelsregister.de is public. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), the register is a reliable and freely accessible source of inform...
BMJ: Rules on 'Disqualified Directors'
Corporate LawThe Austrian Company Law Digitisation Act 2023 (Gesellschaftsrechtliches Digitalisierungsgesetz 2023) will now implement another part of Directive (EU) 2019/1151 (Directive on the use of digital tools and procedures in company law). This concerns the...
BGH on Pre-Contractual Disclosure for Former Shareholders
Corporate LawThe German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) had to decide in several proceedings on the liability of founding partners of a limited partnership (Kommanditgesellschaft). The court distinguished prospectus liability from liabi...
OGH: General Meeting Is Not an Arbitration Board
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified important questions concerning Austrian association law in matters of the competence of arbitration board and the general meeting of members when a member of the executi...
‘Flexible Capital Companies’: Austrian Company Law Newbies
Corporate LawThe Austrian Federal Ministry of Justice has recently submitted for review its draft of the long-awaited Company Law Amendment Act 2023. Alongside changes to the law on limited liability companies (GmbH), the bill also contains a new legal structure ...
GER: Director’s Liability in a Managing Limited Partner GmbH
Corporate LawIn principle, the managing director of a managing limited liability company of a German GmbH & Co. KG is answerable in the event of negligent management for the damages incurred by the limited partnership. This is also true if running the limited par...
Virtual Shareholders’ Meetings Here to Stay
Corporate LawThe Ministry of Justice’s (Bundesministerium der Justiz) draft on virtual meetings of joint-stock companies was submitted for review until 26 May 2013. Virtual shareholders’ meetings, which were introduced as a temporary solution during the Corona pa...
OGH: Adjustment Certificates Do Not Securitise Shareholder Rights
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that anyone purchasing a securitised adjustment certificate does not thereby acquire the rights of the original squeezed out shareholder. This applies, in particular, to...
EU Mobility Directive Implemented in Austria
Corporate LawDirective (EU) 2019/2121 (Mobility Directive) is about to be implemented in Austria and will result in more legal certainty in cross-border restructurings. To date, only cross-border mergers were regulated by law in Austria under the EC Merger Regula...
OGH: Partnership Agreements and Change of Partners
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the principles according to which partnership agreements are to be interpreted after a change of partners. The dispute in the main proceedings is based on the following:...
OGH on EU Mobility Directive in Austria
Civil Law Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has issued a detailed opinion on the implementation proposal by the Austrian Federal Government to implement Cross-Border Mobility Directive 2019/2121 at a national level. This implem...
OGH: No Trustor Liability for Initial Contribution
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has rejected the principle of direct liability of a trustor for an outstanding initial contribution. Such liability only applies in exceptional cases. This decision was based on the f...
GER: Whistleblower Protection Act Poised to Go into Effect
Corporate LawThe German Bundestag has passed the long-awaited new Whistleblower Protection Act (Hinweisgeberschutzgesetz) containing a number of significant amendments. The law is intended to improve the protection of whistleblowers against possible harassment or...
OGH: Statute of Limitations for Return of Capital Contributions
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that claims for repayment based on the return of capital contributions may become time-barred after three years. The plaintiff company was the owner of a property with a pen...
OGH: Trademark Law Can Take Precedence over Naming Law
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that the use of components of a registered trade mark is unfair if the parties to the dispute use the same surname and sell the same products. The managing director of the plaintiff pri...
Germany: Virtual General Meetings Are Here to Stay
Corporate LawAt the beginning of July this year, the German Bundestag adopted a bill on virtual general meetings of public limited companies. Online general meetings were initially introduced for a limited term due to the Covid-19 pandemic, but are now to become ...
Germany: New Supply Chain Due Diligence Act (LkSG)
Corporate LawThe new German Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz, LkSG) will come into force on 1 January 2023. This Act introduces new corporate due diligence requirements for corporate management as well as control duties for sup...
Germany’s DiRUG: More Efficient Data Transmission in the EEA
Corporate LawThe Act on the Implementation of the Digitalisation Directive (Gesetz zur Umsetzung der Digitalisierungsrichtlinie, DiRUG) is due to come into force in Germany on 1 Au-gust 2022. The DiRUG will implement Directive (EU) 2019/1151 with regard to the us...
OGH: Giphy Takeover by Facebook Permitted
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH), as the highest cartel court, has confirmed non-prohibition of the takeover of the GIF platform Giphy by Meta Inc (Facebook), but subject to certain requirements. Facebook parent Meta Inc bought ...
New Vertical BER in Place
Corporate LawThe EU Commission's new Vertical Block Exemption Regulation (Vertical BER) has been in force since 1 June 2022. It replaces the previous regulation from 2010. The main changes are briefly outlined in the following: Two-way Distribution (Article 2(4))...
BMJ: Corporate Digitization Act under Review
Corporate LawThe Austrian Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) has submitted the Company Law Digitization Act for review which is designed to implement European Company Law Digitization Directive 2019/1151. When establishing a GmbH (pri...
OGH: On legal capacity after BREXIT
Corporate LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of the legal capacity or universal succession of a British company after the application of the freedom of establishment had ceased. The plaintiff is ...
OGH: No exemption from liability under the CMR
Corporate LawIf the hauler is responsible for gross negligence within the meaning of Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (CMR), the person entitled to compensation may demand compensation for all damages th...
OGH: Liability of an auditor for investor dispositions
Corporate LawAn aggrieved investor has to claim and prove that he made his investment decision in reliance on the auditor's report and that he used it as the basis for his disposition which resulted in damages. The plaintiff invested EUR 13 million with a stock c...
OGH on the misleading nature of a company name
Corporate LawIf companies are located in the same place or the same municipality, the distinctiveness as a question of the concrete capacity to mislead is not to be examined according to Section 18 para 2 of the Austrian Commercial Code (Unternehmensgesetzbuch, U...
OGH: Consumers can sue for damages under the UWG
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) sticks to its point of view: Consumers have the right to sue for damages resulting from unfair business practices of an entrepreneur. It thus confirmed its legal view, which it took for the first...
OGH on Fake-President Fraud
Corporate LawThe strategy of "fake-president fraud" is not designed to deceive persons authorised to make decisions, but to circumvent use of, or misuse existing processes through skilful manipulation and deception of an employee subject to instructions. Managing...
Environment & Human Rights: EU obligations for companies are coming
Corporate LawAt the EU level, plans are taking shape to introduce a directive to create binding corporate due diligence obligations in the areas of the environment and human rights. Compliance with "effective due diligence" is to be monitored by national supervis...
OGH on the accounting for building demolition costs
Civil Law Corporate LawThe costs of demolishing buildings that have been in the company's assets for a longer period of time cannot be capitalized in the balance sheet as subsequent production costs of land, but represent an expense. The plaintiff - a construction, housing...
Germany: Part 1: Modernization of German Partnership Law
Corporate LawThe long-awaited Act on the Modernization of Partnership Law (Personengesellschaftsmodernisierungsgesetz, (MoPeG) is now scheduled to come into force on 01.01.2024. The outdated provisions of partnership law will be adapted to current case law and th...
Germany - Modernization of the law on partnerships adopted
Corporate LawThe German Federal Cabinet recently approved a submitted bill for a modernized partnership law. The impetus for the bill was that parts of the law on partnerships no longer meet today's practical needs. These include, in particular, the regulations o...
OGH on Sec. 10 (3) (3) Trademark Protection Act
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that the exemption provision of Sec. 10(3)(3) Trade Mark Protection Act 1970 (Markenschutzgesetz 1970, MSchG 1970) need not necessarily be limited to the practical only means of provid...
OGH on the liability of a dual function holder within a group
Corporate LawIf the obligatory approval of the supervisory board is not obtained when a letter of comfort is issued by the executive board of the subsidiary, the managing director is then directly liable to the parent company if he also serves on the executive bo...
OGH on the exclusion of liability in a mandate agreement of a private foundation subject to approval
Corporate LawWhen concluding a mandate agreement between a private foundation and a law firm to which one of the members of the foundation's board of directors belongs as a partner, no limitation of liability to gross negligence may be agreed. Pursuant to Sec. 17...
OGH on the entry in the commercial register of a resolution contestable due to defects in the convening of the meeting
Corporate LawThe 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...
4th COVID-19 Act: Amendment of the COVID-19 Company Law Act
Corporate LawBy the 4th COVID-19 Act, amendments to the COVID-19 Company Law Act (gesellschaftrechtliches COVID-19-Gesetz) were adopted, inter alia. The Federal Act on Special Measures in Company Law arising from COVID-19 (Bundesgesetz betreffend besonderer Maßna...
OGH on registered shareholders within the meaning of Sec. 5 EKEG
Corporate LawAccording to the Equity Replacement Act (Eigenkapitalersatzgesetz, EKEG), loans granted by a shareholder to a company in crisis are considered equity replacement. If such a loan is repaid before the company is restructured, the payments must be repai...
OGH on the prohibited return of capital contributions within a group
Corporate LawIn its present ruling, the Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed its case law on the prohibition on the return of capital contributions. The capital maintenance regulations of the Austrian Act on Limited Liability Companies (Gm...
OGH on the admissibility of provisions in the corporate balance sheet
Corporate LawRecently, the Austrian Supreme Court (Oberster Gerichtshof, OGH) for the first time ruled on the formation of provisions in the annual balance sheet in accordance with the Austrian Commercial Code (Unternehmensgesetzbuch, UGB) for legal costs. In pri...
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