AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
3. Recent Legal Developments 3.1 Significant Court Decisions or Legal Developments Court Decisions Change in the case law on option contracts and laesio enormis In a March 2023 decision, the Supreme Court departed from prior case law on option contracts and the appli - cation of the laesio enormis doctrine. The Supreme Court has clarified that the correct date to be taken into account when assessing the value ratio for poten - tial claims under the leasio enormis doctrine is the date on which the option was granted, not the date on which it was exercised. Transfer of shareholdings and suspension of shareholder rights in limited liability companies In February 2024, the Supreme Court clarified the conditions for transferring shareholdings in limited liability companies and suspending shareholder rights. The Court confirmed that shareholder rights may be suspended under certain circumstances, par - ticularly in cases of disputed ownership. The decision also emphasised the formal requirements for a valid transfer of shares. International jurisdiction for claims against auditors In September 2024, the Supreme Court addressed the issue of international jurisdiction in damage claims brought by an Austrian shareholder against a Germa - ny-based auditor. The Court examined the applica - bility of the tort jurisdiction under Article 7 (2) of the Brussels I Regulation (Recast) and the co-defendant jurisdiction under Article 8 (1). The decision provides important guidance on determining the competent court in cross-border disputes involving professional liability. ECJ decision on Illumina/Grail merger In November 2024, the European Court of Justice ruled against the European Commission’s use of Article 22 of the EU Merger Regulation to review the Illumina/ Grail transaction. The Court held that the Commission had exceeded its powers by accepting referrals from national competition authorities for mergers that did not meet EU or national notification thresholds. This
decision significantly limits the Commission’s ability to scrutinise “killer acquisitions” involving high-value but low-revenue targets. Validity of long-term share options In September 2024, the Supreme Court confirmed that share purchase options in shareholders’ agreements are valid, even if long-term or indefinite, and that excessive duration in non-consumer cases is reduced to a reasonable period. Such options are permissible if objectively justified and if the beneficiary cannot unilaterally trigger the exercise conditions. The Court further held that, under transfer restriction clauses in a limited liability company, shareholder approval may be granted implicitly, so that no separate resolution or additional company consent is required where all shareholders have already agreed to the transfer by The Austrian Virtual Shareholder Meeting Act, which came into force in July 2023, allows stock corpora - tions and limited liability companies to conduct share - holder meetings in different forms, including virtual videoconferences and hybrid meetings. Under the Act, virtual meetings take one of two forms: “simple” or “moderated”, as explained below. • Simple virtual meetings are intended for companies with a small number of shareholders, allowing all participants to speak freely at any time. • Moderated virtual meetings are intended for companies with a larger shareholder base, where shareholders may only address the meeting after submitting a request through a chat function or by email. The Act also sets out tailored provisions for publicly listed companies. The EU Reorganisation Act granting the option. Legal Developments The Virtual Shareholder Meeting Act In August 2023, the EU Reorganisation Act was enact - ed, implementing the EU Mobility Directive (Directive (EU) 2019/2121). In addition to cross-border merg - ers, the EU Reorganisation Act now opens up various paths for cross-border conversions and cross-border demergers. Both “inbound” and “outbound” conver -
51 CHAMBERS.COM
Powered by FlippingBook