Obligations to investigate also for minority shareholders in the event of imminent insolvency!

The Supreme Court of Austria (OGH; Oberster Gerichtshof) dealt with the question, under which circumstances a minority shareholder of a limited liability company (GmbH; Gesellschaft mit beschränkter Haftung) did not recognize the moment of occurence of the insolvency in terms of Section 31 para. 1 lit. 2 Austrian Insolvency Act (IO; Insolvenzordnung) due to slight negligence. According to leg cit, legal transactions which were concluded after the occurrence of the insolvency are contestable, provided that this circumstance should have at least been known to the other party.

In the initial case, the defendant, an employee of a GmbH, received a small share as a bonus and thus became a minority share holder. After she was dismissed due to financial difficulties of the company, she reached an agreement with the managing director on severance payments, but these were only partially met. Insolvency proceedings were initiated shortly afterwards. The previously made severance payments were then challenged by the insolvency administrator because they had been paid out at a time when the defendant should have known of the company`s insolvency; however, the defendant did not know of the insolvency until the commencement of the insolvency proceedings.

The OGH held that the fact of having to be aware of insolvency as defined in Section 31 para. 1 lit. 2 IO is fulfilled if the lack of knowledge is based on a disregard for due diligence: The signs of an economic crisis must, for example, give rise to inquiries being made by reasonable means. As a shareholder, the defendant had a fundamentally unlimited right to information from the GmbH: She thus had the opportunity to inspect the business documents. After all, due to the irregular severance payments, she must have had considerable doubts about the solvency of the GmbH. The OGH therefore classified her lack of interest in obtaining information as negligent, which is why the severance payments that had been made could successfully be challenged.

OGH 3 Ob 117/18d