GmbH & Co KG - Liability of the director of the partner GmbH

In accordance with § 25 GmbHG by analogy, the manager is directly responsible toward the "Komplementär-GmbH", if the "Komplementär-GmbH" acts exclusively in performance of the KG’s management duties. In order to affirm the liability of the manager, he must actually work for the KG. The capital maintenance rules in § 82cc GmbHG apply analogously for a KG if none of its unlimited liability partners is a natural person. Consequently, it is prohibited to provide any payments to the unlimited liable GmbH or to its partners except appropriation of earnings. By granting a loan to the only partner of the unlimited liable GmbH, the manager violates the prohibition on returning contributions. On the conditions cited above, the manager is liable for damages towards the KG. In the present case, there have been paid off excessively high rental prices. [OGH (Austrian Supreme Court) 26.04.2016, 6 Ob 79/16k]

► ["GmbH" is an Austrian company with limited liability; "GmbH & Co KG" is an Austrian limited commercial partnership consisting of a general partner (GmbH) and at least one limited partner; “GmbHG” is the Austrian Law on limited liability companies]