OGH 2 Ob 12/26t | 19.05.2026
A start-up limited liability company (GmbH) engaged a lawyer to revise its articles of association and a shareholders’ agreement. The background was an urgent financing round. An investor made its investment conditional on revising the existing agreements. The GmbH therefore covered the legal costs. When the GmbH failed to pay the lawyer’s invoice in full, the lawyer sued for the outstanding amount. The GmbH argued that making the payment constituted a prohibited return of capital. This would amount to an unlawful transfer of the company’s assets to its shareholders.
The Austrian Supreme Court (OGH) rejected this argument. A prohibited return of capital contributions only occurs when a company transfers assets without receiving equivalent consideration. In this case, the GmbH had a vital interest in successfully completing the financing round. The investor’s participation would provide the GmbH with fresh capital and secure its economic survival. The legal fees were therefore justified as business expenses and had to be borne by the GmbH.
In practice, the GmbH may bear financing-round costs, including legal fees, when the fresh capital benefits the GmbH itself. The situation is different when the company merely finances the acquisition of shares by a new shareholder without benefiting itself.