Die Bank als Wächterin der Kapitalaufbringung und Kapitalerhaltung?

Banks are involved in the capital raising system insofar as they are required to issue a confirmation, known as a bank confirmation, when a corporation is founded or its capital is increased, confirming the payment of cash contributions and their free availability. This confirmation must be enclosed with the application for entry of the company or the capital increase in the commercial register and is therefore addressed to the commercial register. They are liable for any incorrect bank confirmation. Banks are subject to the capital maintenance rules (the prohibition of return of contributions) insofar as they receive any benefit from a corporation that violates the prohibition of return of contributions in the relationship between the corporation and one of its shareholders. A prime example is the provision of collateral by the company in favor of the bank for a loan granted by the bank to the shareholder. In accordance with the principles of abuse of representative authority, the Austrian Supreme Court assumes that the provision of collateral is invalid if the bank was aware of the violation of the prohibition or if this should have been evident to it. However, there has been little discussion so far as to whether the bank, as a mere payment service provider that executes a prohibited payment by the company to its shareholder, can also be held liable in exceptional cases. This article examines the scope and limits of the bank‘s responsibility both when issuing the bank confirmation and in its role as a mere payment service provider in the context of the prohibition of return of contributions, in particular the question of what obligations the bank has and where these end.