In the case of a merger by absorption pursuant to § 1(1)(1) GenVG, a right of first refusal granted to the transferring cooperative passes, by way of universal succession, to the acquiring cooperative (OGH 23 June 2022, 5 Ob 215/21k).
Under the mandatory provision of § 1074 ABGB, a right of first refusal can neither be assigned to a third party nor transferred to the heirs of the entitled person. This non-inheritability is intended to set a temporal limit to the restriction on free commerce contained in the right of first refusal. A right of first refusal can also be granted to a legal entity. It then lapses upon that entity’s dissolution. The provision of § 1074 ABGB corresponds in substance to the likewise mandatory provision of § 1070 ABGB. According to the latter, the right of repurchase, too, cannot be transferred by the entitled person either to the heirs or to another. Under the more recent case law of the Supreme Court, in the case of a universal succession under company law the rights of repurchase and first refusal granted to the transferring company pass to the acquiring company by virtue of the universal succession associated with such company-law transactions; this was expressly held for the case of a merger under § 96 GmbHG, §§ 220 et seq. AktG, the merger on the formation of an SE and the assumption of assets under § 142 UGB.
Pursuant to § 5 GenVG, the registration of the merger by absorption in the cooperative register at the seat of the transferring cooperative brings about the transfer of that cooperative’s assets to the acquiring cooperative and the extinction of the transferring cooperative. The merger is thus a case of legal succession by universal succession. The reason underlying the more recent case law on the fate of the rights of repurchase and first refusal in the case of a merger – namely that in this form of universal succession no liquidation takes place and the transferring cooperative is absorbed into the acquiring cooperative – therefore also applies to a merger by transfer of the assets of a (transferring) cooperative as a whole to another (acquiring) cooperative (merger by absorption pursuant to § 1(1)(1) GenVG).