OGH: Statute of Limitations for Return of Capital Contributions

Jan 3, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that claims for repayment based on the return of capital contributions may become time-barred after three years.

The plaintiff company was the owner of a property with a penthouse and garden. The defendants had been using the penthouse and its garden free of charge ever since 1992. The nullity of the right to use the dwelling due to a violation of the prohibition of return of contributions (Sections 82, 83 of the Austrian Limited Liability Companies Act (GmbHGesetz, hereinafter GmbHG)) was (definitively) established by the Supreme Court in 2018.

The plaintiff filed a lawsuit in 2017 seeking approximately EUR 3 million in compensation for the non-title use of the property since 1993.

The question of the statute of limitations was disputed in the proceedings. The plaintiff was of the opinion that (also irrespective of the defendants' knowledge of the unlawfulness of the use of the flat under Section 83(5) GmbHG) the 30-year statute of limitations should be applied due to the competing general claim for enrichment. The defendants were of the opinion that Section 83(5) GmbHG was superseded by the more specific limitation rules under Sections 1480, 1486(4) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB).

According to the Austrian Supreme Court, the claim is subject to a three-year limitation period:

The provision on the statute of limitations in Section 83 (5) GmbHG does not always compete (only) with the 30-year statute of limitations pursuant to Section 1478 ABGB. Rather, it is necessary to first check whether a special short limitation period may be applicable. Recent case law extends the three-year limitation period (Section 1486 ABGB) also to claims for enrichment that are functionally similar to contractual claims or that take their place in financial terms.

This is the case here, since the demanded use fee is nothing other than the financial equivalent of reasonable contractual remuneration for use of the flat (Section 1486(4) ABGB, short limitation period for rent and leasehold interest). According to the Austrian Supreme Court, the analogue application of Section 1486 Z 4 ABGB is in fact intended to protect debtors from the ruinous accumulation of liabilities. This is especially true when debtors are not aware of the violation of the prohibition of return of deposits, as they would have built up sufficient reserves in case they had been aware of it.

Austrian Supreme Court, OGH 6 Ob 112/22x (18.11.2022)