OGH on the prohibited return of capital contributions within a group

Oct 30, 2020 Benn-Ibler Rechtsanwälte

In its present ruling, the Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed its case law on the prohibition on the return of capital contributions. The capital maintenance regulations of the Austrian Act on Limited Liability Companies (GmbH-Gesetz, GmbHG) are to be applied analogously to limited partnerships (Kommanditgesellschaft, KG), if no partner having unlimited liability is a natural person.

The defendant was the sole shareholder and managing director of a construction company with limited liability (M GmbH), as well as managing director of a subsidiary (T GmbH), whose sole shareholder was the M GmbH. T GmbH was the general partner of the current plaintiff (KG), the limited partner was M GmbH. In the course of a construction project, M GmbH issued a bank guarantee of EUR 150,000, for which the defendant personally assumed liability as guarantor and payer. When this guarantee was invoked by the owner, the defendant (as managing director of the general partner) had an amount of approximately EUR 130,000 transferred from the plaintiff's account to the account of the M GmbH to cover the liabilities of the M GmbH. When this guarantee was invoked by the client, the defendant (as managing director of the general partner) had an amount of approximately EUR 130,000 transferred from the plaintiff's account to the account of the M GmbH to cover the liabilities of the M GmbH. Without this transfer, the defendant's liability as guarantor and payer would have become applicable.

The OGH affirmed the existence of a prohibited return of capital contributions as the bearing of a shareholder's liabilities by the company constitutes such an act. The regulations concerning the prohibition on the return of capital contributions (Sec. 82 ff. GmbHG) are to be applied analogously to the limited partnership in relation to its limited partners. The limited partnership is in this case entitled to the reimbursement claim. In addition the managing directors are obligated according to Sec. 21 (3) (1) GmbHG to compensate if corporate assets are distributed against the regulations of the GmbHG. These principles apply in parallel to a limited partnership subject to capital maintenance regulations. Even the existence of a group relationship does not change the principles of capital maintenance, as the group consists of legally independent companies, so that a precise allocation of the respective liability is necessary.

OGH 6 Ob 21/20m (25 June 2020)