After the ban on the return of contributions, shareholders are only entitled to the balance sheet profit resulting from the (duly approved) annual balance sheet, insofar as the distribution of the balance sheet profit is not excluded by the articles of incorporation (statutes), resolution of the partners or by law. When exactly are these principles to be applied to the GmbH & Co KG (limited liability company & limited partnership) and does the bearing of a shareholder’s liabilities by the company constitute the prohibited return of contributions?
analog application
The Supreme Court (OGH) recently emphasized that the provisions on the ban on the return of contributions to the KG in relation to its limited partners are to be applied analogously if the unlimited liability partner in a KG is not a natural person. These provide for a claim for reimbursement, which the KG is entitled to in this case. It is important that the capital maintenance regulations in such a case apply analogously to donations to the shareholders of the general partner GmbH, but also to those to “limited partners only”. The analogous application of the capital maintenance regulations is also to be affirmed for donations from the KG to shareholders of the general partner GmbH, who are also limited partners of the KG.
Claims for damages in case of violation?
The fact that the general partner has unlimited liability for the KG’s liabilities does not conflict with this. Finally, the ban is also aimed at the GmbH & Co KG itself and its bodies, so that claims for damages by the GmbH & Co KG can be considered in the event of a violation. In the opinion of the court, it should be borne in mind that the general partner can also have other creditors than the limited partnership, so that the amount of the funds is by no means irrelevant.
In the case of a GmbH & Co KG, the managing director of the general partner of the KG is directly responsible for managing its business. Although there must be special circumstances for the KG to claim damages against the general partner’s managing director who acted with carelessness, these already lie in the activities of the general partner GmbH exclusively to perform management tasks for the KG or in the personal identity of limited partners , GmbH shareholders and managing directors . The supreme court finally emphasized that the bearing of a shareholder’s liabilities by the company in any case constitutes the prohibited return of contributions (published in OGH 6 Ob 61/21w).
Conclusion: The provisions on the ban on the return of contributions are to be applied analogously to the limited partnership in relation to its limited partners if the limited liability partner in a limited partnership is not a natural person. In the event of a violation, claims for damages may be considered. Extreme caution is required here, because the bearing of a shareholder’s liabilities by the company in any case fulfills the offense of the prohibited return of contributions.
For further information, please contact:
Christian Anetter , Partner
Frimmel | Anetter Rechtsanwälte GmbH, Austria
e: ta.tkeridthcer@rettena
t: +43 463 50 0002
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