OGH on registered shareholders within the meaning of Sec. 5 EKEG

Nov 9, 2020 Benn-Ibler Rechtsanwälte

According to the Equity Replacement Act (Eigenkapitalersatzgesetz, EKEG), loans granted by a shareholder to a company in crisis are considered equity replacement. If such a loan is repaid before the company is restructured, the payments must be repaid. In this context, the Austrian Supreme Court (Oberster Gerichtshof, OGH) for the first time commented on whether a future shareholder can also be covered by Sec. 5 EKEG.

According to Sec. 5 EKEG, a shareholder is covered by the act if he or she holds at least 25% of the capital. In the present case, a loan which the defendant had granted to the company during the crisis was repaid. Although the defendant was not a shareholder at the time the loan was granted, the transfer of a 20% share to it had already been agreed upon and the acquisition of a further 5% share was at least being considered and discussed. Only after repayment of the loan was the actual transfer of the shares and thus the acquisition of a 25% shareholding completed.

The OGH first deduced from the wording of the provisions that the act is in principle only applicable to those lenders who were shareholders within the meaning of the EKEG at the time the loan was granted. As an exception, however, it could be sufficient if the granting of the loan was directly related to an - albeit not yet formally valid - agreed participation in the company. In contrast, the granting of a loan with regard to a merely possible acquisition of shares does not yet lead to the application of the EKEG.

Since only the 20% shareholding has already been fixed, but there was no de facto agreement on the acquisition of the 5% shareholding at the time the loan was granted, the defendant is not a registered shareholder within the meaning of the EKEG.

OGH 17 Ob 1/20a (28 May 2020)