Voluntary consent to examination by Austrian Federal Audit Office not possible; Extraordinary General Meeting to be called on 20 August 2009
Flughafen Wien AG reports that legal opinions by numerous well-known experts including constitutional law professor Dr. Bernd-Christian Funk as well as Dr. Franz Marhold and Wolf Theiss, the largest law firm in Austria, have indicated that they do not see sufficient legal basis for an examination by the Austrian Federal Audit Office. According to the constitutional law opinion by Dr. Funk, the arguments against the controlling jurisdiction of the Austrian Federal Audit Office are overriding. As a listed company, we are required to comply with stock exchange law. We can therefore not voluntarily agree to an audit without a well-founded legal basis. All expert opinions have indicated that this legally binding decision can only be made by the Supreme Constitutional Court of Austria. We did not make this decision lightly, since we are very interested in clarifying the developments surrounding the Skylink project, commented the Management Board of Flughafen Wien AG in reference to the ongoing investigations. The Management Board of Flughafen Wien AG has evaluated the relevant legal opinions and decided that it cannot agree to an examination by the Austrian Federal Audit Office. The Supervisory Board has taken positive notice of this decision.
The Management Board will meet the demands of the Flughafen Wien employee foundation (Flughafen Wien Mitarbeiterbeteiligung Privatstiftung) for an Extraordinary General Meeting, which will be asked to approve a special audit of the Skylink project pursuant to Austrian stock exchange law. In agreement with the Supervisory Board, the Management Board will convene this meeting on 20 August 2009.
Constitutional law arguments against jurisdiction of Austrian Federal Audit Office predominate
An expert opinion by constitutional law professor Dr. Bernd-Christian Funk indicates that the Austrian Federal Audit Office does not have controlling jurisdiction based on equity participation. This statement is based on a regulation that calls for an investment of at least 50% in the capital stock, share capital or equity of the legal entity, which is not met by the ownership structure of Flughafen Wien AG. In the evaluation pursuant to constitutional law, the legal arguments against the existence of control and therefore against the controlling jurisdiction of the Austrian Federal Audit Office dominate. According to this expert opinion, there is a constitutional issue that has not been unequivocally clarified by previous judicial decisions but which, in an extension of these arguments, can be answered in a rejection of the controlling jurisdiction of the Austrian Federal Audit Office. The Supreme Constitutional Court of Austria is responsible for a binding decision.
Voluntary audit could possibly lead to claims for damages
According to Wolf Theiss, the Management Board would be guilty of a violation of its due diligence obligations if it consented to an examination by the Austrian Federal Audit Office ? given the lack of jurisdiction of the Austrian Federal Audit Office to conduct such an audit. An expert opinion by law professor Dr. Franz Marhold indicates that the acceptance of an examination by the Austrian Federal Audit Office without objection would lead to a situation that is not provided for under constitutional law, and would in turn create further legal uncertainty.
Experts indicate that 2001 legal opinion by Austrian Federal Audit Office is still valid
In a letter dated 9 November 2001, Austrian Federal Audit Office President Fiedler explained that a binding decision on the jurisdiction or lack of jurisdiction cannot be made by the Austrian Federal Audit Office itself, but only by the Supreme Constitutional Court of Austria. The circumstances relevant for this evaluation have not changed since that time, according to an opinion by Wolf Theiss. This opinion agrees with the 2001 letter from the Austrian Federal Audit Office, which indicates that the Austrian Federal Audit Office does not have the jurisdiction to audit Flughafen Wien AG and that a binding decision can only be made by the Supreme Constitutional Court of Austria.