OGH: Statute of Limitations for Capital Repayments

Feb 16, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the suspension of the statute of limitations pursuant to Section 1494 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) applies analogously to cases of repayment of capital contributions, even if the representative of the aggrieved company is a close relative of the beneficiary (i.e., indirect) shareholder.

The present decision is a continuation of the recent Penthouse ruling (6 Ob 195/18x, 6 Ob 112/22x), where the plaintiff GmbH was the owner of a penthouse apartment in which the first defendant (most recently an indirect shareholder of the limited liability company) and, as the second defendant, her husband, who was also a director of the limited liability company, had free accommodation. In 6 Ob 195/18x, the OGH found a violation of the prohibition on refunding contributions (Section 82 of the Austrian GmbH Act). In 6 Ob 112/22x, the OGH ruled that the resulting claims for restitution based on the law of unjust enrichment according to Section 1486 (4) of the ABGB are time-barred after three years. At issue in this decision was whether there was a suspension of the limitation period under section 1494 of the ABGB.

The OGH upheld this, and went on to explain why it ruled as follows:

In previous decisions, the OGH has already applied the statute of limitations provision of Section 1494 of the ABGB to periods in which the managing director of a GmbH was at the same time the shareholder in whose favour Section 82 of the GmbHG was violated. In view of the conflict of interests, there can be no expectation that the director would assert claims against himself while he was a shareholder.

If the shareholder and the director are not identical, but the director is a third party related to the shareholder, the same considerations apply, according to OGH. In such a case, the interests are the same. It is unlikely that the close relative will have any claims for compensation during his time as director because of a conflict of interest.

If the GmbH has a collegiate board, the suspension of the limitation period applies mutatis mutandis if the close relationship to the shareholder exists with so many members of the board that proper representation is impossible. There is no suspension of the limitation period if there is at least one impartial representative who has sole power of representation.

OGH 6 Ob 170/23b (20 December 2023)