Third-party liability for prohibited return of capital contributions (OGH 23.06.2021, 6Ob61/21w)

Created by Mag. Fridolin Fahringer |
Corporate Law

In the topical case, an external third company granted a loan to the parent company in a parent-subsidiary constellation. In the following, this loan was wholly repaid full by the subsidiary to the third company. From an economic point of view, the subsidiary released the parent company from the repayment or interest obligation, without providing adequate renumeration or security.

Capital preservation protection and return of deposits:

In Austria, the strict principle of capital maintenance applies to corporations such as the GmbH, the AG or the GmbH & Co KG. The principles prescribe that the assets of the company must be strictly separated from those of the shareholders. This protects creditors from a reduction of the liability fund by prohibiting unjustified (direct or indirect) transfers of assets. If a payment is made by the company to the shareholder outside the ordinary profit distribution, this may constitute a prohibited return of capital contributions.

Third-party comparison:

A prohibited return of contributions is also fulfilled if a shareholder does not provide sufficient renumeration for a legal transaction with the company. In such cases, the deal must be scrutinized under the scope of the ‘third-party comparison’: If the legal transaction between the company and the shareholder would have been concluded materially identically with a person outside the company (‘third party’), it does not constitute a return of contributions; otherwise, the amount undercutting the third-party comparison constitutes a prohibited return of contributions.


The legal transaction granting the return of capital contributions is considered void and the company is able to reclaim the amount paid. The repayment obligation primarily affects the shareholder as the recipient of the contribution repayment and subsidiarily the management.

Decision of the Supreme Court:

The Supreme Court has now ruled that in exceptional cases third parties may also be liable: In the decided case, the third company granting the loan was ‘involved’ in the questionable constellation as well as knew the shareholding relationships. As the third company was aware, the subsidiary was able to reclaim the loan not only from the parent company but also from the third company on the basis of the invalidity of the return of contributions and tort law.