Legal News
March 7, 2023

GmbH shares held in trust: Liability of trustor to raise capital?

Corporate law practice regularly deals with GmbH shares held in trust (note: the GmbH is a Limited Liability Company under Austrian law). In a recent decision, the Austrian Supreme Court (OGH) clarified some legal issues on this topic (OGH 25.01.2023, 6 Ob 31/22k).

With regard to the (fundamental) relationship of a trustor participating in a GmbH to the company, it is established jurisprudence that, according to the so-called principle of separation, the shareholding in the company and the trust relationship must be separated from each other. Only the trustee is a shareholder with all the associated rights and obligations under corporate law. There are no legal relations between the trustor and the company (cf. RIS-Justiz RS0123563). This principle generally also applies to the obligation to make the initial contribution pursuant to § 63 (1) Austrian Act on Limited Liability Companies (GmbHG). The obligation to pay the initial contribution arises from the corporate relationship and therefore in principle only affects the trustee as shareholder. This applies irrespective of whether the trustor has a co-controlling legal position within the company. The Supreme Court expressly emphasised the interests of the trustor that are worthy of consideration, namely that the trustor wishes to be involved only indirectly and does not wish to appear externally.

Under certain circumstances, however, the principle of separation is not applicable. Thus, the Supreme Court recently ruled in the above-mentioned case that the trustor is liable for the contribution obligation assumed by the trustee if the interposition of the trustee obviously serves the purpose of circumvention or abuse. This is usually the case if the trustee was only involved in order to avoid a corresponding liability of the trustor and the trustee does not have the necessary means from the outset to fulfil his obligation to perform (in this case the obligation to pay the capital contribution; so-called ‘straw man constellation’). According to the Supreme Court, in these cases the creditor's interest in an extended liability fund (in the form of joint and several liability of the trustee and trustor for the payment of the initial contribution) is to be valued higher than the trustor's interests. In the initial case, the Supreme Court denied the liability of the trustor for the capital contribution because, among other things, it could not be established that the intermediary trustee, an English limited company, had lacked the funds to raise the capital contribution from the outset.

Furthermore, in 6 Ob 31/22k the Supreme Court also commented on the question of capital maintenance: In contrast to the provisions on the payment of the initial contribution, the prohibition of the return of contributions (§§ 82 f GmbHG) is also directed at the trustor. This results from the economic approach required by the jurisprudence. In this respect, contributions made by the company to a third party related to the shareholder at the instigation of a shareholder are therefore also prohibited, especially since such contributions then accrue to the shareholder himself from an economic point of view - according to the opinion of the Supreme Court. This applies to close relatives as well as to the trustor as a mere indirect shareholder. Accordingly, a payment by the company to a trustor (or even - as in the case at hand - to the trustor's spouse) may constitute a void return of contributions if it is not counterbalanced by an (arm's length) consideration. Whether this was the case in the outgoing proceedings is still to be assessed by the court of first instance after supplementing the proceedings.

With this decision, the Supreme Court has in any case clarified further fundamental questions regarding the holding of GmbH shares in trust. We are at your disposal for advice on legal questions in this context.