In a new decision, the Supreme Court once again provides views on the prohibited repayment of equity (capital maintenance) that are not easy to digest (OGH 18.02.2021, 6 Ob 207/20i):
- According to settled case law, the prohibition of equity repamyent is also applicable to GmbH & Co KGs in which no natural person participates as a partner with unlimited liability.
- If a violation of the capital maintenance rules is recognisable, the auditor must exercise the duty to report.
- The auditor is liable for damage incurred in connection with the breach of the duty to report. If the annual financial statements are defective and this is not discovered by the auditor due to his breach of duty, the auditor must place the audited company, as the injured party, in the position it would have been in had the damaging event not occurred.
- If the auditor issues a confirmation report on the annual financial statements, this may also be grounds for liability. The damage to the company may, for example, be that an overstatement of profits in the annual financial statements leads to an excessive dividend payment, which can then no longer be reclaimed.
- The corporate bodies of a corporation must be aware of existing supreme court rulings; the legal situation and prevailing case law at the time of the conclusion of the legal transaction in question must be taken into account. A court decision must be taken into account immediately once it has been published in RIS-Justiz, which is accessible online.