Publications
Overview of all publications
Audit / Accounting
The Vienna Commentary on the Austrian Commercial Code (UGB) is the standard work on the Commercial Code. The commentary addresses the duties of the auditor, the scope of audits, and the independence and incompatibility rules for the performance of audits.
The Vienna Commentary on the Austrian Commercial Code (UGB) is the standard work on the Commercial Code. It contains the most comprehensive commentary on the liability provisions for auditors and a comprehensive review of the legal basis, the persons entitled to claim, and the scope of liability. In recent years, this topic has increasingly become the focus of case law, and the commentary is regularly cited by the courts.
In recent years, the liability of auditors has become a focus of case law, with the Supreme Court primarily having to deal with issues of third-party liability. In 2013, numerous rulings were issued on the subject, some of which gave substantial contours to issues that had been disputed for a long time. This article provides an overview of the relevant principles of the Supreme Court’s case law on the third-party liability of auditors.
In two recent decisions, the Supreme Court has dealt with the question of how to deal with claims for damages by injured third parties that exceed the liability limits of Section 275 (2) UGB. The case law thus selects one of – as far as can be seen – two alternative solutions (distribution according to the quota or priority principle). However, both raise considerable problems in practice, which also shed light on the unsatisfactory situation of auditor liability de lege lata.
The legal issues discussed in this article have gained further relevance at the latest since the Commerzialbank Mattersburg case and have given rise to several follow-up decisions.
Banking law
The commentary on sections 37a and 27 of the Banking Act in the Large Commentary on the Banking Act deals with the provisions on deposit insurance and those for credit cooperatives. The provisions on deposit insurance and the German Deposit Guarantee and Investor Compensation Act (ESAEG) are highly relevant for all depositors, as several bank settlements have also shown in the recent past.
Credit cooperatives are still a widespread type of bank in Austria. § Section 27 of the Banking Act contains difficult special provisions under company law on the liability of cooperative members and is therefore at the interface with company law.
The commentary on Section 26b of the Austrian Banking Act in the Large Commentary on the Austrian Banking Act deals with the provisions on the collection of own funds. Credit institutions can strengthen their capital base by collecting own funds, which is why this provision is of particular importance in times of banking crises.
Völkl/ Frenzl § 27a in Laurer/M.Schütz/Kammel/Ratka, BWG4 (2019).
The commentary on section 26b of the Banking Act in the Large Commentary on the Banking Act deals with the regulation of liquidity networks. The provision is primarily relevant for credit institution groups and also serves to ensure financial market stability.
In a highly regarded decision from June 2018, the HG Wien ruled that the agreement of a minimum interest rate without a simultaneous agreement of a maximum interest rate for entrepreneurial loans was impermissible. The article outlines some theses and food for thought on the topic.
In the annotated decision, the OGH dealt with questions of the minimum interest rate agreement and content control in the case of entrepreneurial loans.
Labor and social law
The decision deals with the qualification of service regulations for federal railroad employees, and the permissibility of their unilateral amendment. With commentary by Katharina Posch.
OGH 17.05.2000, 9 Ob A 77/00i
The decision deals with the issue of granting benefits by health insurance carriers for thermal spas. With commentary by Katharina Posch.
OGH 05.12.2000, 10 Ob S 311/00h
Katharina Posch, Die e-mail-Nutzung aus arbeitsrechtlicher Sicht in it-law.at (ed.), e-mail elektronische Post im Rechtsverkehr (Manz 2003) 75.
The introduction of so-called “new media” in the work process naturally entails thinking about their legal classification. The main problem here is that all forms of digital data transfer are suitable for guaranteeing comprehensive control of employees. In the following, we will therefore not only discuss the “species-appropriate” use of new media by employees, but also the permissibility in principle of the use of such company resources by the employer and any rights of participation of the works council.
Katharina Posch, two articles in Mazal (ed.), Casebook Arbeits- und Sozialrecht5 (WUV 2003).
On the problem of indirect gender discrimination as a result of taking the spouse’s income into account, cf. OGH of 19.12.2001
The present E raises an old familiar problem again: An employee (CO) fails to show up for work without excuse for a certain period of time and does not give a legitimate reason for the absence. The employer (AG) then dismisses the employee. Is the dismissal justified?
The article provides a sample PC use policy.
The author analyzes a decision of the Austrian Supreme Court (OGH) in which the court examined whether the employee’s failure to appear at the workplace can be construed as a conclusive termination of the probationary employment relationship.
OGH, 07.08.2003, 8 ObA 51/03p
At the latest after the most recent rulings of the Austrian Supreme Court on the subject of demand-based work, the opinion that “work on demand” is completely inadmissible in Austria, because it is immoral, is becoming more and more widespread. In contrast, this article presents arguments that could also speak in favor of (albeit at least limited) admissibility. These arguments are not only supported by a comparison with German case law4) , but also with regard to the ruling practice of the VwGH5) on this topic.
Knowledge of the influence of Community law on the development of law in the Member States is becoming increasingly important in practice; this applies in particular to labor law. Time and again, groundbreaking developments in ECJ case law are based precisely on decisions in this area of law. It is also to be expected that the importance of European labor law will continue to grow.
This casebook introduces the fundamental case law of the European Court of Justice in this area of law and contains 20 key decisions in the original, whose significance for European law and for the legal systems of the Member States is explained briefly and concisely. Some of these are “classics” whose names stand for certain turning points in the development of law, while others are highly regarded recent decisions. In doing so, the legal development that these decisions have triggered is also included and provided with corresponding evidence.
This article deals with problems that arise in the case of outsourcing, specifically in the area of “public” labor leasing (“assignment”) to a private party. In particular, the legal basis and scope of the private employer’s duty of care towards the assigned worker are examined in detail.
The author describes the legal changes in the Austrian Tobacco Act caused by the integration of the requirements of the Tobacco Advertising and Sponsorship Directive and examines which (labor law) legal consequences the disregard of a smoking ban in the workplace may entail.
The article deals with the liability of employment agencies, i.e. recruitment consultants, headhunters, labor brokers.
Katharina Völkl-Posch, Die Betriebsvereinbarung in Mazal/Risak (eds), Das Arbeitsrecht, ch IV (Lexis Nexis Loseblatt).
Insurance law
The scope of authorization of the commercial asset advisor authorizes him, among other things, to provide advice on building up, securing and preserving assets. In the course of our consulting activities, we often also provide tax advice on individual forms of investment and insurance. This article examines the extent to which the commercial investment advisor is entitled to provide tax advice and what type of tax information is still covered by professional liability insurance.
The article addresses complex issues in public liability and environmental liability insurance, including the relationship between the gradualness exclusion and suddenness as part of the definition of accident.
Numerous special features apply in mandatory liability insurance, including the continued existence of insurance coverage in the event of breaches of obligations and the direct claim of the injured party against the insurer, which are dealt with in this article.
Clemens Völkl, Abgabenrechtliche Haftungen und D&O-Versicherung, ZSS 2020,158 (https://elibrary.verlagoesterreich.at/article/10.33196/zss202002015801).
As a rule, D&O insurance only covers liability based on statutory provisions under private law. In certain cases, however, it may also be possible to provide cover in respect of tax damage and to pay defense costs.
Civil and procedural law
Clemens Völkl, § 1300 S 1 ABGB als Grundlage einer allgemeinen zivilrechtlichen Informationshaftung, ÖJZ 2005, 97.
The article comprehensively prepares the dogmatic basis of the general liability for information according to § 1300 ABGB, shows its areas of application de lege lata and de lege ferenda, and thus presents the enormous scope that this provision has or could have in liability law.
The Vienna Contract Manual is one of the standard works for sample contracts. The chapter contains comprehensive, extensively explained sample contracts for the various types of civil law partnership, such as the syndicate agreement or joint venture agreements, which are highly relevant in business practice.
The Business Contracts Manual is one of the most comprehensive sample manuals. The chapter contains the practically significant school changes.
The Business Contracts Manual is one of the most comprehensive sample manuals. The chapter contains numerous consulting contracts suitable for business consultants or lawyers, for example.
In their contribution, the authors describe the characteristic features and merits of alternative conflict regulation models and comment on reform considerations and new conceptions at the Community and national levels, differentiating between private and state activities. Based on these explanations, they discuss various arbitration models in the field of international business law and elaborate on distinguishing features.
On the occasion of the changes in procedural law resulting from the 2010 amendment to the FinStrG, Wöber and Völkl show in this article the areas in which practical differences between administrative proceedings on the one hand and judicial proceedings on the other become apparent.
Corporate Governance and the ÖCGK represented a major innovation. The question was – similar to today – is there a kind of “greenwashing” there and how is this sanctioned. The article shows how a sanction can result from the ad hoc publicity requirements when these are linked to the reporting obligations under the ÖCGK, because the violation of the publicity requirements is punishable by law.
The book deals with questions of the enforcement of investor claims iZm incorrect and/or incomplete corporate governance reporting. Basic questions regarding disclosure obligations, procedural issues as well as the obligations of companies and issuers, various bases of liability and the enforcement of claims are examined.
The author comments on the need for and possible benefits of legal recognition of the Corporate Governance Code. In doing so, he also includes the requirements of the German recognition standard in his considerations and deals with questions of jurisdiction and liability in cases of misuse of declarations.
The draft Company Law Amendment Act 2005 (GesRÄG 2005) is intended to implement measures to improve corporate governance, enhance the quality of auditing, establish an advisory board for accounting and auditing, combat insider trading and ensure the reliability of financial information. Among other things, a standard is envisaged that will explicitly anchor liability for incorrect or omitted financial information in Austrian law for the first time.
The chapter focuses on social responsibility investment (SRI) funds in Australia. It explains the investment strategies adopted by SRI funds in the furtherance of corporate social responsibility. Typically, the strategies of SRI funds can be characterized as socially sensitive or socially dictated and are defined as dual-objective strategies. It also discusses the legal framework for SRI funds, in particular the difficulty with accommodating them within the prudent investor rule that governs the management of all fiduciary investment products. The chapter also looks at the implications of SRI funds in the context of Australian law as well as to all jurisdictions whose investment management laws are based upon English law (for instance, the United States and Canada).
With regard to the liability of asset managers and investment advisors, the author devotes his contribution to the prerequisites of direct liability and the question under which circumstances actions are to be attributed to the person concerned and when the company is liable. In doing so, he starts from general liability principles and delves into the subject matter, drawing distinctions from general civil law.
The Supreme Court used its highly regarded decision “Niedermeyer Privatstiftung” (Niedermeyer Private Foundation) to clarify a number of recently much-discussed issues of investor protection and, in doing so, also had to deal with fundamental questions of in rem restitution in the constellation of tort law, corporate law, capital market law and civil procedure law. The decision contains some remarkable legal propositions in terms of substantive and procedural law that are worthy of critical examination and will have a lasting impact on the subject.
This article presents the Supreme Court decision 4 Ob 62/11p of 5.7.2011, which deals in detail with the unlawfulness connection on the occasion of the examination of damages with regard to the violation of the duty to inform by an investment advisor. It deals with the violation of consulting duties by not informing about the risk, the damage calculation as well as a possible contributory negligence.
Völkl/Schagerl, Annual Review 2019 Investment Advisor Liability, ZFR 2020, forthcoming.
In 2019, the Supreme Court issued several rulings on faulty investment advice due to breaches of the duty to inform and disclose, especially in the case of hidden internal commissions. It thus continues the already very extensive and strict case law on conflicts of interest in securities distribution. As a rule of thumb, it can be said that, as a general rule, every circumstance must be disclosed to investors that is likely to impair advice in the “best interest” of the client. Accordingly, internal commissions must also be disclosed as a matter of principle because they are likely to mislead the customer about the bank’s true commission income, which is why there is a particular need to protect and inform the customer. According to the case law of the Supreme Court, a breach of the duty to disclose internal commissions – irrespective of their amount – gives rise to a claim for compensation for the loss resulting from the acquisition of the undesired investment (= undesirable asset composition), unless the advisor proves the absence of an unlawful connection with the breach of duty and the customer would not have acquired the investment if he had been properly informed.
Banking Supervisory Law
The 7th Annual ZFR Conference highlighted selected of the many new regulatory challenges facing European financial market law. While academia and practitioners are currently struggling to digest the supervisory reform implemented in 2010/2011, the legal practitioner is confronted with nearly a dozen new regulatory initiatives of the Union: From IMD 2, the reform of EU deposit insurance, the planned bank resolution rules to MiFID 2, MAD and the harmonization of capital market criminal law.
In their article, the authors take a closer look at the Bank Intervention and Restructuring Act (BIRG), which came into force on January 1, 2014. In this context, they deal in particular with questions of personal scope of application as well as the reorganization and liquidation plan.
This work is the first comprehensive commentary on the “old” Bank Restructuring and Intervention Act (BIRG), which was later replaced by BASAG and BRRD.
Consultant liability
In their article, the authors deal with the responsibility of arbitrators and mediators. In the course of the presentation of the relevant legal bases, they also refer to the new regulations in the Arbitration Law Amendment Act and in the Civil Law Mediation Act, deal with the question of the applicability of § 1299 ABGB and the analogy capability of § 3 Abs 1 AHG and examine whether liability of the arbitrator could also be derived from the defective performance of the arbitrator’s contract. Finally, they point out the obligatory conclusion of a liability insurance for mediators.
Consultant liability is largely in its infancy as a field of law. The reasons for this are different: On the one hand, liability cases are regularly seen as individual decisions in case law. In many cases, therefore, an appropriate system has not been developed by the courts. On the other hand, it is in the nature of things that “consultants” do not take the word of their own liability. In the absence of a systematic approach, experience has shown that it is difficult to examine individual cases. This paper therefore develops further assessment approaches for consultants and judges.
The book is the standard work on the subject of advisor liability in Austria and offers a systematic overall view of all important issues of advisor liability. The authors deal both with the liability bases of contractual, quasi-contractual and tortious liability as well as the admissibility of exclusions of liability and insurance law and with special liability issues of the
- Lawyers
- Notaries
- Chartered accountant and tax advisor
- Insolvency administrator
- Referee
- Mediators
- Management Consultant
- Employment agencies – recruitment consultants, headhunters, labor brokers
The “due diligence” that should be exercised in the acquisition of companies and shares regularly includes the performance of a due diligence review, with which the target company or the target enterprise is analyzed and the existing risks are uncovered and evaluated. An important part of this review is the evaluation of legal risks, which are not only relevant for the purchase decision per se, but also have to be considered in the context of the subsequent contract design. Depending on the object of purchase, the examination of legal risks covers a multitude of legal areas and must regularly be carried out under high time pressure. Coordinated action by the people involved, based on a division of labor, is therefore crucial to the success of an M&A transaction. This handbook is intended to serve both consultants and entrepreneurs, as well as members of corporate bodies, as a practical reference work with which one can optimally prepare for all questions and eventualities. Leading experts from academia and practice deal with all central areas of law as well as numerous practice-relevant special issues, the importance of which is often underestimated in the acquisition of companies and shares.
Membership in the management of a GmbH or AG is always associated with liability risks – also from a tax law perspective. Pursuant to § 9 BAO, the representatives of corporations are liable, in addition to the taxpayers they represent, for the taxes due by them to the extent that the taxes cannot be collected as a result of a culpable breach of the duties imposed on the representatives. Likewise, financial offenders are liable for the shortchanged tax amounts. The liability standards under tax law are of great importance in practice and not infrequently lead to personal claims being made against the natural persons active in each case, especially since the judicature imposes strict requirements on the standards of care of management bodies.
This work, now in its updated and expanded third edition, deals in a practice-relevant and scientifically sound manner with the liability facts existing in Austrian tax law and relevant for business managers. Renowned authors from academia, financial administration and consulting practice present the most important areas of law in individual contributions. In addition to general contributions on liability, the official exercise of discretion, special features of liability proceedings, aspects of financial criminal law, special issues in the case of insolvency and the effects of internal business distributions on the liability situation are discussed in detail.
Corporate law and company law
The 4th edition on company and corporate law based on the proven concept of the “Lernen.Üben.Wissen.”-Edition prepares the subject matter in an easy-to-understand manner. Numerous examples support the memorization of the material and promote understanding. The learning success can be checked by means of control questions; definitions of the most important terms serve as a quick refresher.
Volume I deals with corporate law, Volume II with company law. Both volumes have been brought up to date: The legal changes since the last edition have been incorporated, new sections on the nonprofit association, the charitable foundation and antitrust law have been added!
The 4th edition on company and corporate law based on the proven concept of the “Lernen.Üben.Wissen.”-Edition prepares the subject matter in an easy-to-understand manner. Numerous examples support the memorization of the material and promote understanding. The learning success can be checked by means of control questions; definitions of the most important terms serve as a quick refresher.
Volume I deals with corporate law, Volume II with company law. Both volumes have been brought up to date: The legal changes since the last edition have been incorporated, new sections on the nonprofit association, the charitable foundation and antitrust law have been added!
The Vienna Commentary on the Austrian Commercial Code (UGB) is the standard work on the Commercial Code. The commentary deals with the general provisions of the Company Register, the facts to be registered in general and the registration of amendments.
The Vienna Commentary on the Austrian Commercial Code (UGB) is the standard work on the Commercial Code. The commentary deals with the entrepreneur by virtue of registration, the fundamentals of the company register under corporate law and the practically important provision on publicity in the company register.
The Vienna Commentary on the GmbHG is one of the standard works on GmbH law. The commentary deals with the central provision on the company’s managing directors.
The Vienna Commentary on the GmbHG is one of the standard works on GmbH law. The commentary deals with the reduction of capital.
Partnerships play an important role in practice not only for small and medium-sized enterprises; the cooperation of large companies is also often assessed on the basis of partnership law.
The “Handbook of Partnerships” offers a systematic, interdisciplinary overall presentation of the law of Austrian partnerships, structured according to legal fields, which, in addition to all areas of corporate and tax law, also covers numerous other legal fields that may be relevant to partnerships.
With the Societas Europaea, the EU for the first time has a form of corporation that is essentially supranational and offers transnationally operating companies the opportunity to (re)organize themselves across national borders and to cooperate in a wide variety of ways. With this handbook, the editorial duo Straube/Aicher presents a practical, manageable anthology which, on the one hand, presents the complex subject matter in a comprehensive and comprehensible manner and, on the other hand, penetrates it scientifically. This interdisciplinary work not only deals with the corporate law of the SE.
Due to the lack of a regulation comparable to Section 161 dAktG, the publication of the Austrian Corporate Governance Code (ÖCGK) has raised many questions, in particular concerning the incorporation of the Code into the system of stock corporation law. The author examines two questions that have recently been asked repeatedly, namely on the one hand whether the Corporate Governance Code has an impact on the standard of care set out in Section 84 of the German Stock Corporation Act (AktG) and on the other hand whether an obligation on the management board to issue a declaration of conformity similar to the German legal situation can perhaps be derived from Section 70 of the AktG at all.
In his article, the author explains the distribution of representation rights in the European stock corporation with a monistic management model and shows to what extent changes are possible through the articles of association.
In his article, Clemens Völkl deals with the capital reduction pursuant to §§ 54 ff GmbHG and the legal consequences of the failure of the implementation of the capital reduction.
Discount stores, which sell products at particularly low prices, especially via the Internet, are currently very much in vogue and often use auxiliary persons to find these low-price offers – few people are aware that commercial agency law can play a role in this. The claims of such sales assistants (if the general requirements are met) essentially correspond to those of the classic commercial agent in the form of a purchasing agent. The claim for compensation has already been examined in detail in case law as well as in the L. In contrast, this cannot be said for the commission claim and §§ 8, 9, 14 and 15 HVertrG cause contract drafters problems again and again in practice. This article is intended to shed light on the structuring options in connection with the commercial agent’s entitlement to commission and resolves some unresolved issues with regard to the so-called “purchasing agent”.
The liability of corporate bodies vis-à-vis the company for management measures is generally assessed in accordance with expert liability, although there are also isolated voices in favor of a special liability right for corporate bodies. The authors point out that the liability is a manifestation of the general expert liability, whereby the damage is to be determined on the basis of a cost-benefit test from the company’s point of view. A limitation of liability is thereby made with regard to the justifiability of the decisions.