A majority catalogue in the Austrian GmbH structures the statutory levels of sections 34, 35, 39, 49 and 50 GmbHG with simple majority, three-quarters majority, unanimity for a change of the corporate object and the consent of the affected shareholders.
The majority catalogue is at the heart of the resolution layer in a GmbH. It orders which topics fall under the simple majority of votes cast, which require a qualified contractual majority and which sit under the mandatory rules of sections 49 and 50 GmbHG. Under section 39 paragraph 1 GmbHG resolutions are passed, unless law or the articles provide otherwise, by a simple majority of votes cast; under section 39 paragraph 2 GmbHG each ten euros of an assumed contribution grants one vote, with each shareholder holding at least one vote. For amendments to the articles section 50 paragraph 1 GmbHG requires a three-quarters majority of votes cast; section 50 paragraph 3 GmbHG requires unanimity for a change of the corporate object, unless the articles provide otherwise; section 50 paragraph 4 GmbHG requires the consent of all affected shareholders for an increase of duties or a reduction of individually granted rights. A catalogue that works with this frame can shape the contractual layers for practice.
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Without particular contractual rules the base model of the GmbHG applies. Under section 39 paragraph 1 GmbHG resolutions are passed, unless law or the articles provide otherwise, by a simple majority of votes cast. Under section 39 paragraph 2 GmbHG each ten euros of an assumed contribution grants one vote. Fractions below ten euros are generally disregarded, but a remainder of at least five euros is counted as a full ten euros. The articles can provide otherwise; each shareholder must however hold at least one vote. This minimum vote is the mandatory base of any divergent weighting.
For amendments to the articles section 50 paragraph 1 GmbHG raises the bar. Amendments require a three-quarters majority of votes cast. The articles may attach further requirements. Under section 49 paragraph 1 GmbHG the amendment resolution has to be notarially recorded; under section 49 paragraph 2 GmbHG the amendment only takes legal effect on registration in the company register.
Under section 50 paragraph 3 GmbHG a change of the corporate object as designated in the articles requires a unanimous resolution unless the articles provide otherwise. Under section 50 paragraph 4 GmbHG an increase of the duties owed by the shareholders under the articles or a reduction of the individually granted rights of shareholders can only be resolved with the consent of all shareholders affected.
The overall order of the resolution layer sits in the topic view on shareholder rights and voting rights. For the practical review the checklist on voting rights and majorities orders the process.
Under section 35 GmbHG the resolution by the shareholders extends, in addition to the matters designated elsewhere in the GmbHG, to the review and approval of the annual accounts, the distribution of the balance sheet profit where the articles reserve this to a separate annual resolution, the discharge of the managing directors and of the supervisory board, if any, the calling in of payments on the contributions, the repayment of shareholder loans, the decision whether Prokura or Handlungsvollmacht for the entire business may be granted, measures for the audit and supervision of the management, the pursuit of compensation claims and the conclusion of certain acquisition contracts on plants or immovable objects above defined values.
This allocation is not an everyday choice but is prescribed by statute. Under section 35 paragraph 2 GmbHG the matters can be increased or reduced in the articles, but on the topics under section 35 paragraph 1 subparagraphs 1, 3 and 6 GmbHG and on the acquisition matter under section 35 paragraph 1 subparagraph 7 GmbHG a shareholder resolution remains mandatory in the first two years after registration.
For the catalogue this yields a clear sorting: the section 35 GmbHG mandatory topics stay with the shareholders. The contractual catalogue can refine form and majority but cannot readily shift them to management. Consent catalogues on the management layer, described in Consent catalogue for investments, loans and credit lines, operate in addition to section 35 GmbHG, not instead of it.
For resolution documentation and evidence Resolution minutes as evidence supplies the base. For the overall articles order Restating the articles instead of individual amendments provides the frame.
A good catalogue distinguishes three layers. The first layer covers everyday decisions with a simple majority under section 39 paragraph 1 GmbHG. The second layer covers fundamental decisions, for which the articles may set a higher majority. The third layer covers amendments to the articles under the mandatory rules of sections 49 and 50 GmbHG.
On the second layer the articles can set qualified majorities. The concrete threshold is company-specific and depends on capital structure, shareholder configuration and the interests involved. There is no typical standard value; every choice requires a case-by-case review. It matters that the second layer does not extend into the third and does not hide amendments inside a catalogue item.
On the third layer the frame is mandatory. Amendments require the three-quarters majority under section 50 paragraph 1 GmbHG; they may be tied to further requirements under section 50 paragraph 1 second sentence GmbHG. A change of the corporate object requires unanimity under section 50 paragraph 3 GmbHG unless the articles provide otherwise. An increase of duties or a reduction of individually granted rights under section 50 paragraph 4 GmbHG requires the consent of all shareholders affected.
On the selection of catalogue items on the second layer Consent catalogue for investments, loans and credit lines orders the typical topic list. On the delimitation from the convening and agenda-addition procedure Minority convening right orders the pre-meeting steps.
The calculation basis of a majority follows the statutory default. Under section 39 paragraph 2 GmbHG each ten euros of an assumed contribution grants one vote. Fractions below ten euros are generally disregarded, but a remainder of at least five euros is counted as a full ten euros. The articles can provide otherwise but must leave each shareholder at least one vote. Head quotas are available as a contractual choice, respecting this minimum vote.
Mixed models with head and capital quotas are also possible, provided the mandatory minimum rules of the GmbHG are respected. The articles then set the basis per catalogue point. That precision reduces the likelihood of disputes about the calculation and makes the results traceable.
On the written route under section 34 GmbHG a different calculation basis applies. Under section 34 paragraph 2 GmbHG the required majority is not calculated from the votes cast but from the total number of votes belonging to all shareholders. Anyone who does not respond effectively counts as a non-vote; explicit approvals, rejections and abstentions can be classified accordingly.
For the practical vote counting Resolution minutes as evidence supplies the documentary structure. On the interplay with the written procedure Minority convening right orders the linked steps.
Handling abstentions, invalid votes and non-participation is a classification question. In physical meetings section 39 paragraph 1 GmbHG turns on the votes cast. An abstention is not a vote cast in the sense of an approval or rejection and affects the majority accordingly. The articles can, for qualified majorities, specify how abstentions are treated, without shifting the underlying calculation basis in principle.
Invalid votes may result from a defective ballot and should also be clearly reported in the minutes. They do not count as valid yes or no votes and affect the majority accordingly. Differentiating the count between approval, rejection, abstention and invalid votes in the minutes supports a later review.
Non-participation is to be distinguished from abstention. A shareholder not present or represented does not cast a vote. For qualified majorities the articles may provide a presence quorum, respecting the mandatory rules of section 38 paragraphs 6 and 7 GmbHG on the ability to resolve.
For the documentary base of the count Resolution minutes as evidence is useful. For the interaction with a consent catalogue Consent catalogue for investments, loans and credit lines is recommended.
Under section 39 paragraph 4 GmbHG a shareholder who is to be released from an obligation or granted a benefit has no voting right either in his own or in a third-party name. The same applies to resolutions on the conclusion of a transaction with a shareholder or on the initiation or settlement of a dispute between him and the company.
The rule is strictly resolution-focused and applies to the specific vote. The remaining shareholders carry the decision. Under section 39 paragraph 5 GmbHG the voting right on his own appointment or removal as managing director, supervisory board member or liquidator remains unrestricted.
Contractual extensions of the voting ban to connected or related persons are available but should not be treated as automatic statutory consequences. Anyone who provides them delimits the scope and names the covered constellations. On self-dealing and connected transactions Self-dealing and contracting with oneself orders the surrounding regime.
For the interplay with documentation requirements Resolution minutes as evidence is useful. For the further structure the checklist on voting rights and majorities orders the check steps.
The majority catalogue is not the same as a consent catalogue and not the same as a personal veto. The consent catalogue addresses the management and binds it under section 20 paragraph 1 GmbHG internally to shareholder consents for defined transactions. Under section 20 paragraph 2 GmbHG such internal limitations have no legal effect towards third parties. The majority catalogue, by contrast, orders the resolution layer of the shareholders themselves.
The personal veto is an individual right. It lets one person block a resolution even where the majority has decided otherwise. It operates individually and requires clear boundaries in the articles, in particular because section 50 paragraph 4 GmbHG ties a reduction of individually granted rights to the consent of all shareholders affected.
The three instruments should be kept clearly apart in the articles. The majority catalogue binds the resolution layer to defined thresholds. The consent catalogue binds the management to defined topics. The personal veto binds the majority to the consent of a particular person.
On the interplay with the wider articles order Review the articles in a growing shareholder group is useful. On the preparation of an amendment the checklist for preparing an amendment orders the flow.
Threshold values or majority catalogues in the articles cannot be changed by a simple shareholder resolution just because an adjustment clause claims so. Where the content of the articles is changed, the mandatory requirements of sections 49 and 50 GmbHG apply with notarial recording, three-quarters majority and registration in the company register. Contractual clauses providing automatic adjustment against an objective index can be examined ex ante; a free simple adjustment does not match the statutory frame.
A catalogue that is too tight raises the deadlock risk. Where many topics require a qualified majority and the shareholders disagree, standstill follows. The articles should offer exits. Settlement windows, mediation clauses and exit rights for the blocking shareholder are proven. The linked framework sits in the topic view on deadlock and dispute prevention.
On the other hand a catalogue that is too wide reduces the steering effect. Where only a few topics are decided at qualified majority, grey zones grow. The balance depends on the specific GmbH. It turns on the size of the shareholder circle, the homogeneity of interests and the weight of individual strategic transactions.
For the interplay with a restatement Restating the articles instead of individual amendments is useful. For the preparation of the articles review the checklist for the first consultation supplies the structure.
Under section 39 paragraph 1 GmbHG resolutions are passed with a simple majority of votes cast unless law or the articles provide otherwise. Under section 39 paragraph 2 GmbHG each ten euros of an assumed contribution grants one vote; the articles can provide otherwise but each shareholder must hold at least one vote.
Under section 50 paragraph 1 GmbHG amendments require a three-quarters majority of votes cast; the articles may set further requirements. Under section 49 paragraph 1 GmbHG the resolution has to be notarially recorded; under section 49 paragraph 2 GmbHG the amendment only takes effect on registration in the company register.
Under section 50 paragraph 3 GmbHG a change of the corporate object designated in the articles requires a unanimous resolution unless the articles provide otherwise. The articles can provide a majority decision instead.
Under section 50 paragraph 4 GmbHG an increase of the duties owed by the shareholders under the articles or a reduction of the rights individually granted to shareholders under the articles can only be resolved with the consent of all shareholders affected. This consent is mandatory.
The majority catalogue binds the resolution layer to defined thresholds. The consent catalogue under section 20 paragraph 1 GmbHG binds the management internally to topics; under section 20 paragraph 2 GmbHG those limitations do not have effect towards third parties. The personal veto is an individual right that binds the majority to the consent of a particular person.
Review and structure GmbH articles with Brandauer Rechtsanwälte in Austria.
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