unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
A focused as-is versus target review for a specific succession: which clause groups should be tested against at least two realistic stress scenarios.
A set of articles records a company's history. It shows who decides, whose consent is needed, who benefits and where conflict may arise. For succession, the decisive question is whether the articles support the specific planned handover. That requires a focused as-is versus target review, not a generic clause catalogue.
The review covers the clause groups relevant to succession: management and representation, resolutions and majorities, veto and deadlock, transfer, death, buy out rights, compensation, profit, financing, security for the transferor, information rights, amendment form and completion. Each clause is tested against at least two realistic stress scenarios.
The post does not replace the deep dives on control rights, buy out rights or transfer restrictions. It is the frame audit for the planned handover. The topic area on articles in succession orders the individual deep dives.
The check orders control allocation, main gap and implementation maturity. The result can be sent to the firm with the key facts.
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§ 15 GmbHG allows appointment by resolution or, exceptionally, by the articles. § 35 GmbHG lists central shareholder matters. § 39 GmbHG sets simple majority as the default, subject to exceptions and voting bans. Without clear clauses, conflict between transferor and successor group can block decisions during the handover.
§ 76 GmbHG requires a notarial deed for the transfer of GmbH shares between the living and for the obligation to transfer them in the future. Additional contractual consent requirements and a workable buy out right protect the family circle. Without these clauses, uncomfortable intermediate states arise in a succession case.
Profit distribution, balancing payments and security for the transferor must not block each other. Under § 82 GmbHG, balance-sheet profit may be distributed only insofar as the articles or a shareholder resolution do not exclude it; other benefits need an independent, legally sound basis. Ignoring this connection risks liquidity and validity.
Amendments to the articles generally require a three-quarters majority under § 50 GmbHG and, where the statute requires, additional consents. Under § 49 GmbHG, the resolution must be notarised and the amendment entered in the company register. The completion plan links these steps to a concrete timetable.
Not every clause has to be redrafted before a handover. Priority should follow two criteria: real conflict risk in the particular family situation and whether an amendment can be completed in time. That leaves room for substantive work instead of unnecessary formality.
If fundamental questions on leadership, ownership and balancing are still open, the audit runs in circles. The family goal picture should be recorded in a short paper first, then the articles can be measured against it. That order saves time and nerves.
The first block is operational leadership. Under § 15 GmbHG, managing directors are generally appointed by shareholder resolution. The articles may provide for appointment in the articles themselves and regulate the term of office. The clause is tested against two scenarios: sudden loss of the current management and transition between generations.
For a succession, representation must also be organised. Who signs, who may act alone and who needs a second signatory? Under § 20 GmbHG, managing directors are internally bound by contractual or shareholder-imposed restrictions, while mere restrictions on their authority to represent generally do not affect third parties. This does not replace the directors' statutory authority or an agreed joint-representation rule. Internal and external levels must be reviewed separately.
For the intended handover, the relationship between transferor and successor is finally arranged. Advisory contracts, signing rights or powers of attorney are tools that are planned and limited. The topic area on management and control deepens the concrete role models.
The second block concerns decision-making. § 35 GmbHG lists central shareholder matters; § 39 GmbHG sets simple majority as the default and defines voting bans in specific cases. The articles can tailor those rules. For succession, what matters is which decisions require which majority and which matters are prepared by a family council or advisory board.
Contractual special rights, such as management appointment rights, advisory-board seats or special voting weights, must match the intended role split and be legally permissible. Anyone granting a veto today has to know how it may work in the family twenty years later. The disturbance test checks the rule against a sudden conflict between two family branches.
Section 50 GmbHG applies to amendments. In principle a three-quarters majority is required; the statute may also require consent from affected shareholders where their obligations are increased or their rights curtailed. Ignoring these requirements leaves the amendment plan without a reliable legal basis.
The third block concerns share movement. § 76 GmbHG requires a notarial deed for the transfer of shares between the living and for the obligation to transfer them in the future. The articles can provide additional requirements, in particular a transfer restriction. Without a clean restriction, successions arise in which the family is surprised who has just become a co-shareholder.
The buy out right complements the transfer restriction. It opens an acquisition path on events such as death, withdrawal, insolvency or divorce. It does not replace the consent mechanism and must not become a licence for arbitrary valuations. The articles review grid links to the relevant detailed guidance.
Compensation clauses must hold up for the business and for the family. A separate post on the buy out right deals with the validity limits in more detail. For the audit here, what counts is: the clause has to preserve liquidity and must not be so strict that it breaks mandatory limits. The topic area on voting and veto rights shows how special rights fit into this balance.
The fourth block concerns money. Profit distribution in a GmbH follows the paid-in capital contributions unless the articles provide otherwise. Distributions are tied to balance-sheet profit and § 82 GmbHG; other benefits between company and family need an independent, legally sound basis. For succession, distributions and remuneration must remain transparent and financeable.
Security for the transferor is often linked to advisory contracts, pension commitments or housing rights. The audit examines whether these claims are properly documented and whether, together with other balancing claims, they overburden the business. Two scenarios are tested: the transferor lives significantly longer than assumed and the economic situation deteriorates.
Information rights of passive shareholders are a frequently underestimated topic. Anyone no longer exercising real control should still be adequately informed. The clause should regulate scope, occasion and frequency clearly, otherwise the conflicts arise that appear as early warning signals in the succession risk check.
The articles are not the only governance layer. Family governance, a family constitution and a possible advisory or supervisory board can operate alongside them. They provide a forum for discussions that do not belong in every shareholders' meeting and for strategic questions that shape the business over time.
For the audit, this means that the articles must leave room for family governance and must not overlay it with rigid clauses. A purely advisory board needs clear tasks. For a voluntary supervisory board, its basis in the articles, powers and composition must be reviewed; a mandatory supervisory board, by contrast, follows directly from the statutory conditions. The family must be able to distinguish the levels.
The role of a family council, family office or external advisors also belongs in the picture. They are not corporate bodies, but they can stabilise the company. Clear allocation of these functions reduces the burden on the articles, which then need to provide only the essential legal structures.
The fifth block closes the as-is versus target review. Amendments generally require a three-quarters majority under § 50 GmbHG; consent of particularly affected shareholders may also be required. Under § 49 GmbHG, the amendment resolution must be notarised and the amendment entered in the company register; it has no legal effect before registration. The audit delivers a draft amendment and completion plan.
A regular clause test should not wait for the next succession. Annual short checks of the central clauses, based on the review grid, prevent slow drift. Changes in the family situation, in balance sheet structure or in case law can turn previously workable clauses into conflict risks.
In the end, the articles must not only allow the planned handover but remain workable in foreseeable stress scenarios. If they do not, they should be amended before the handover. A rushed repair attempt on the day of transfer is the most expensive option.
No. If the existing articles support the intended handover and foreseeable disturbance cases, no amendment is needed. The share-transfer, corporate-body, consent and register steps that may nevertheless be required depend on the particular succession structure and must be reviewed separately.
In principle § 50 GmbHG requires a three-quarters majority. Where duties of shareholders are increased or their rights curtailed, additional consent of the affected shareholders may be required. The articles can provide stricter requirements.
No. A transfer restriction under § 76 GmbHG controls a transfer intended by the shareholder. A buy out right opens an acquisition path when a defined event occurs. The clauses serve different functions and can stand alongside each other so the family retains control over ownership changes.
A short clause test annually makes sense, a deep audit before every planned succession or material family change. Changes in case law, balance sheet structure or family situation justify additional reviews between the standard dates.
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