In a recent decision, the OGH declared that the appointment of the managing director of a GmbH represents a mandatory responsibility of the shareholders. Appointment authority cannot be transferred to other organs of the company, such as the Supervisory Board. The Supreme Court has thus strengthened the influence of the shareholders of a GmbH on the management of the company.
This recent case law from the Supreme Court influences existing regulations in the partnership agreement, which provide for the transfer of appointment authority – mostly through construction of voting ties.

In a long-awaited decision, the Supreme Court has answered the controversial legal question as to whether the appointment of the managing director in a GmbH represents a mandatory competence of the general meeting or whether other bodies (e.g. the supervisory board) or third parties can also be entrusted with this. The question had no clear legal regulation in the GmbHG. The Supreme Court has now made it clear that the shareholders’ appointment authority in accordance with Section 15 Paragraph 1 Sentence 3 GmbHHG is mandatory and thus a transfer of decision-making authority to another body in accordance with the partnership agreement (in the present case it was about the supervisory board) qualified as inadmissible (OGH March 21, 2019, 6 Ob 183/18g).
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