KG Dissolution: Lack of assets alone is not sufficient

Apr 23, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with determining whether a limited partner may be required to consent to the removal of a GmbH & Co. KG (Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellschaft) from the Commercial Register, particularly in cases where the company has not engaged in business activities for several years and is purportedly without assets.

The claimant, serving as the general partner of a GmbH & Co KG, had requested the defendant limited partner’s consent to initiate dissolution proceedings for the company. The claimant asserted that the entity was created exclusively to secure VAT benefits, had not conducted any business operations for several years, and currently held no assets. As a result, the claimant argued that, in accordance with Section 30 of the Austrian Commercial Code (Unternehmensgesetzbuch, hereinafter UGB), the company had effectively ceased to exist and must be formally dissolved.

The defendant argued that his contribution as a limited partner consisted of silver valued at over EUR 500,000. The company had transferred these assets to the claimant without receiving anything in return. As a result, the company maintained a claim against the claimant, indicating that there was no shortage of assets.

The court of first instance supported the claim, concluding that the company was insolvent and the alleged claim lacked justification. The court of appeal affirmed this outcome, stating that dissolution was unrelated to insolvency and instead depended solely on the permanent cessation of business operations.

The OGH overturned the lower courts’ decisions, explaining that simply stopping business activities does not end a registered partnership. A limited partnership (KG) can only be dissolved after it has been properly wound up. After this step, liquidation may take place if there are assets; if there are none, termination can occur immediately.

The cessation of business activities and the absence of assets are not, in themselves, adequate grounds for deregistration. As a matter of procedure, dissolution of the partnership is required prior to any deregistration. The OGH has unequivocally dismissed the analogous application of ex officio deregistration for partnerships, as outlined for corporations in Section 40 of the Austrian Company Register Act (Firmenbuchgesetz, FBG).

Since the claimant did not allege during the proceedings that the company had been dissolved nor that any statutory grounds for dissolution pursuant to Section 131 of the UGB had been satisfied, there is presently no basis upon which the defendant may be required to consent to deregistration.

Consequently, the matter was remanded to the court of first instance for a new determination and to further complete the proceedings.

OGH 6 Ob 214/25a (24 February 2026)