Distinguish the type of credit first
Under section 3(3) EKEG, where an asset is provided for use or a service is rendered, only the remuneration can amount to credit. The use or service itself is not the credit.
Liability
Shareholder loan in a crisis: review repayment and set off
Shareholder loans in a crisis: review credit type, status, timing, repayment and set off separately under the Austrian EKEG.
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19 July 2026, Mag. Bernhard Brandauer, Rechtsanwalt
A shareholder loan in a business crisis is not classified by its contractual label alone. The type of credit, the lender's status, the time it was granted and every later form of satisfaction must be reviewed separately.
Section 1 EKEG covers credit granted by a shareholder to the company during a crisis. Section 3 distinguishes certain short term arrangements and credit granted before the crisis. Section 14 governs the repayment restriction and expressly includes set off, enforcement of a pledge and other forms of satisfaction.
This article concerns shareholder financing. Filing duties, liquidity monitoring and the directors' personal responsibility belong in the directors and shareholders in a crisis topic.
1. Determine the credit type under section 3 EKEG
1. Determine the credit type under section 3 EKEG
Not every form of shareholder support is credit for EKEG purposes. Section 3(1) distinguishes, in particular, cash credit made available for no more than 60 days and trade or other credit made available for no more than six months. Under section 3(2), the trade credit period may be longer where longer payment terms are customary in the sector and the shareholder proves this.
If an asset is provided for use or a service is rendered, section 3(3) says that only the remuneration can constitute credit. The loan agreement, invoices, maturity dates, payment terms and bank records therefore need to be reviewed together.
2. Establish the lender's relevant status
2. Establish the lender's relevant status
Section 1 EKEG requires credit from a shareholder to the company. The name written on the agreement is not enough. Identify the lender, the shareholding, any trustee or intermediate entity and the relevant status at the time of the transaction.
Shareholder status does not replace the remaining statutory tests. Conversely, financing by a related or connected person should not be treated as ordinary third party credit without examination. This article does not make a generic attribution.
3. Separate the timing of credit and crisis
3. Separate the timing of credit and crisis
Under section 1 EKEG, granting the credit during the crisis is the central temporal connection. The file therefore needs at least two separate timelines: the payment or other grant of credit and the company's economic development.
Section 3(1)(3) clarifies that extending or deferring repayment of credit granted before the crisis is not credit within section 1. This does not remove the need to examine other arrangements or new value. The question is what was actually granted and when.
4. Review repayment under section 14 EKEG
4. Review repayment under section 14 EKEG
Under section 14(1) EKEG, equity replacing credit and related interest generally cannot be recovered while the company has not been reorganised. The provision also defines circumstances in which the company is not yet treated as reorganised. Where insolvency proceedings ended under a confirmed restructuring plan, the plan dividend must also be considered.
Section 14(1) requires restitution of payments made despite the restriction. Principal, interest, payment date, company status, recipient account and payment reference should be documented separately.
5. Capture set off and other forms of satisfaction
5. Capture set off and other forms of satisfaction
The repayment restriction cannot be avoided merely because no cash transfer is made. Section 14(1) expressly includes satisfaction by set off, pledge enforcement or another method.
For a set off, preserve both claims, their maturity, the declaration of set off and the accounting implementation. Only then can a prohibited satisfaction and any restitution claim be assessed.
6. Keep the loan review separate from the directors hub
6. Keep the loan review separate from the directors hub
The EKEG review concerns shareholder credit and satisfaction of that credit. The directors and shareholders hub addresses crisis records, management decisions and insolvency filing duties. Both analyses may concern the same crisis, but they are not one generic liability question.
Use the shareholder loan and repayment checklist to prepare the file. A more detailed German analysis is available in Shareholder loans in a crisis: EKEG Austria 2026.
FAQ
Frequently asked questions about shareholder loans
Is every shareholder loan equity replacing? +
No. Section 1 EKEG requires, in particular, credit granted by a shareholder during the crisis. Section 3 contains further distinctions. Credit type, status and timing must be examined.
Can a loan granted before the crisis be repaid later? +
The mere extension or deferral of credit granted before the crisis is not credit within section 1 under section 3(1)(3). Whether a specific repayment is permissible still depends on the contract, later value and the wider legal position.
Does set off avoid the repayment restriction? +
No. Section 14(1) EKEG expressly includes satisfaction by set off. Pledge enforcement and other forms of satisfaction are also covered.
Further information
Related review paths
Topics
EKEGshareholder loanbusiness crisis
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