unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
How a successor can assume responsibility in stages without confusing corporate office, representation, control and liability.
Trial management is not a separate status under Austrian company law. A person is either appointed managing director and carries the corresponding organ responsibility, or works in another function such as division head, authorised signatory or project lead. A trial phase is nevertheless valuable in succession. It must align responsibility, representation and control at every stage.
Families often give the successor all daily tasks while the transferor remains the only external signatory and intervenes whenever a difficult choice arises. That produces dual leadership without accountability. Immediate appointment without access to information, budget authority and support is equally risky. A sound trial phase transfers concrete decision space and measurable outcomes, not merely a title.
The topic page on management and control explains the formal levels. This guide provides a staged route from project work through power of procuration or divisional responsibility to managing-director appointment, with the documents, resolutions and controls needed at each stage.
The check separates operational testing, authority to represent and formal office. The result can be sent to the firm with the role description.
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Assign a commercially relevant but bounded project with budget, team, target, reporting and a final review. The successor needs real decisions in the defined area, while representation and approvals remain explicit.
Map contracts, personnel, investment, banking, customers, suppliers and authorities by decision, participation, information and approval. Compare internal competence with procuration, signing authority and company-register position.
Define which decisions are final for the successor and when reviews occur. Limit transferor intervention to stated exceptions. Employees receive one clear reporting line.
Agree monthly performance meetings using the same metrics and a short decision record. The transferor advises on request and evaluates agreed goals, but does not quietly resume daily management.
Set departments, overall duties, reserved matters, joint decisions, absence and escalation. Internal limits under section 20 GmbHG bind vis-à-vis the company but generally do not restrict authority against third parties.
Describe tasks, information, customer meetings, personnel leadership and intervention rights for both people. A staged plan lists not only new successor powers but also the duties the transferor releases.
Under section 15 GmbHG, a managing director is appointed by shareholder resolution. Upon appointment, the person assumes corporate office. Section 18 GmbHG gives managing directors judicial and extrajudicial representation of the company. An internal note describing the appointment as provisional does not remove that responsibility.
Appointment and service agreement are separate layers. Section 16 GmbHG generally permits revocation of appointment by shareholder resolution while leaving contractual claims unaffected. A limited trial must therefore coordinate corporate office, service contract, remuneration, termination and any return to another role.
A person not yet appointed can be tested through project leadership, divisional responsibility or procuration. Actual external authority must match the function. Customers and employees need to know who can decide and sign. An impressive title without power is as problematic as broad authority without internal control.
A sound model starts with a complete responsibility map. Production, sales, personnel, finance, investment, banking, tax, IT, insurance and authorities are listed separately. Each field states whether the successor observes, prepares, shares or makes the decision. Progress depends on results determined in advance.
The first stage can be a project with its own budget, followed by a division with continuing performance responsibility. A further stage may add procuration or joint signature. Appointment follows once access to information, judgement, team leadership and crisis response have been tested. The sequence should fit the operation rather than a rigid annual programme.
Every stage needs a start, end and evaluation. Measures go beyond revenue and profit. Decision quality, employee leadership, documentation, liquidity awareness and timely escalation all matter. Targets should be demanding without depending on personal knowledge held only by the transferor.
Joint managing directors often divide departments internally. The successor leads sales and people while the transferor keeps finance and major customers. This can organise work but does not automatically remove the duty to remain informed about material company matters. Reporting between departments must be explicit and observed.
Section 20(1) GmbHG requires directors to comply internally with restrictions in the articles, shareholder resolutions and binding supervisory instructions. Under subsection 2, restrictions generally have no legal effect against third parties. An internal approval limit therefore does not reliably prevent an externally authorised director from binding the company while breaching internal duties.
The trial phase must connect both levels. High-risk transactions can use joint representation, dual payment approval and reserved matters. At the same time, the successor needs genuine room to demonstrate leadership. If every decision requires the transferor's signature, the family tests patience rather than suitability.
Section 25 GmbHG requires the care of an orderly businessman. For a business decision, a managing director acts consistently with that standard where no extraneous interests guide the decision and adequate information supports a reasonable belief that the action benefits the company. A trial phase should therefore expose the quality of the decision process.
Before major decisions the successor records the starting position, information, alternatives, risks and reason for the choice. This need not become a long opinion. A short decision sheet often suffices. It shows whether information was obtained, uncertainty identified and conflicts recognised, and avoids later disputes over oral instructions.
The transferor should not ask whether they personally would have chosen the same option. The question is whether the process was defensible and agreed limits were observed. Errors are analysed rather than hidden. This reveals whether the successor seeks support in time during a crisis or allows difficult developments to continue.
Employees quickly see whether responsibility has truly moved. If the successor decides but every dissatisfied person can obtain a second answer from the transferor, the old hierarchy remains. The successor loses authority, the transferor becomes a permanent referee and the organisation learns to circumvent responsibility.
The family therefore needs an escalation path. Operational questions stay with the successor. Defined key matters go to both directors or shareholders. Personal conflicts enter a separate review. The family council can collect expectations but must not become an appeal body for personnel or customer decisions.
The successor must not return responsibility whenever risk appears. A person who keeps successful choices and sends difficult cases back is not ready for the next stage. Reviews should record which decision was returned, why and what information would support independent action next time.
The document set includes role profile, competence matrix, target sheet, reporting rhythm, representation, any procuration, appointment resolution, company-register filing and service agreement. Joint management adds departmental rules. Banking authorities and digital approvals must reflect the same position.
Outcome criteria are agreed before the stage begins. Results may include progression, extension with specific learning goals, a permanent divisional role or orderly termination of the trial. These are not threats. They provide realism and avoid an unsuccessful family trial continuing indefinitely.
Preparation benefits from the articles, company-register extract, organisational chart, authorities, director and employment contracts, annual plan and a list of decisions historically taken only by the transferor. The first succession meeting checklist structures this material. A business-specific staged plan can then be drafted.
No. A valid appointment creates corporate office with the statutory rights and duties. Testing can be staged contractually and organisationally but cannot treat director responsibility as provisional.
Section 16 GmbHG generally permits revocation by shareholder resolution. Claims under the service agreement remain separate. The articles and contract therefore need to be reviewed together.
Internal restrictions bind the director vis-à-vis the company. Under section 20(2) GmbHG they generally have no legal effect against third parties. External representation and internal approval need separate design.
Alongside financial results, assess decision quality, liquidity, personnel leadership, documentation, risk handling and timely escalation. Targets and access to information should be fixed before the stage begins.
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