Order of Cracow Regional Court, 2nd Civil Appellate Division

2 March 2010

Case No. II Cz 2182/09

Bankruptcy and judicial capacity of Austrian company

Determining foreign law, effect of deletion of Austrian company from company register, relevance of claim under execution for legal capacity of Austrian company

1. The court of first instance was not required to apply to the justice authorities of the Republic of Austria to determine whether the creditor still possesses judicial capacity. The court was only required to determine the content of Austrian law governing this legal issue, but the manner of application was up to the court of first instance.

2. The court took the appropriate measures in order to determine the Austrian law with respect to maintaining judicial capacity on the part of a commercial company deleted from the register. According to a letter from the Federal Ministry of Justice of the Republic of Austria dated 1 April 2008, the judicial capacity of a legal person depends on its legal capacity. A limited-liability  company deleted from the register cannot be wholly liquidated so long as it holds assets. For such time it also possesses legal capacity and, consequently, also capacity to undertake legal acts.

3. The creditor displayed the appropriate initiative by informing the court of deletion from the register and also indicating that so far the company had not undergone liquidation, as it possesses assets. This rules out the soundness of the arguments by the appellant that the execution proceeding in this respect should be discontinued under Civil Procedure Code Art. 824 § 1(2). By indicating a specific asset - the claim being executed - the creditor demonstrated that under Austrian law it had not yet lost judicial capacity.