ARTICLES and NOTES - Notarius International

142 T. Antenreiter, National Report Austria Notarius International 3-4/2002
The partners are, within the framework of the general
law, completely free to structure the civil law partnership
in accordance with their needs; no particular legal form is
stipulated. The statutory authority is the currently valid
version of the General Civil Code.
6.2.2. General partnership
A general trading partnership (Offene Handelsgesellschaft:
OHG) consists of at least two partners, who can
be either natural persons or legal entities. The principal
characteristic of a general partnership is that all partners
have unlimited liability to the extent of all their assets because,
as in the case of a sole trader business, it is more
the personal labour input than the capital input which predominates
81 . The general partnership is not a legal entity,
but like a legal entity it can, in its legal relations, acquire
rights and enter into obligations under its firm
name, acquire ownership of or other real rights in land
and bring legal actions or be sued 82 .
The partnership assets are in the common ownership of
the partners, who, in accordance with the principle of personal
direction of a firm by its members (Selbstorganschaft)
are appointed to manage and represent the
partnership 83 . As in the case of a sole trader business the
general partnership attains merchant status when it operates
a commercial enterprise of a certain size (commercial
enterprise by virtue of the objects of a business) or is entered
in the Companies Register (commercial enterprise
by virtue of Companies Register entry). As a rule the
company contains the personal name of the sole trader.
The formation of a general partnership is equally simple
and requires no particular legal form. The main statutory
authority is the currently valid version of the Austrian
Commercial Code.
6.2.3. Limited partnership
A limited partnership (Kommanditgesellschaft: KG)
is a type of corporate structure which, to a large extent, is
the same as a general partnership and basically displays
all the legal characteristics of a general partnership, so
that the above remarks relating to general partnerships also
apply to limited partnerships.
The only difference is that not all participating members
of the limited partnership have unlimited liability to the
full extent of their personal assets: a distinction is made between
general or unlimited partners and limited partners
84 . A limited partnership must have at least one general
partner, who represents the firm externally and has unlimited
liability to the full extent of his assets. In addition
there must, however, be at least one limited partner who is
only liable to the extent of a particular maximum sum.
The main statutory authority is the currently valid version
of the Austrian Commercial Code.
6.2.4. Registered small business partnerships
Registered small business partnerships (Eingetragene
Erwerbsgesellschaften: EEG) represent an extension
of the general and limited partnership model in the
area of small-scale businesses.
Accordingly, there are two different forms of registered
partnership, namely the general registered partnership
(Offene Erwerbsgesellschaft: OEG), which conforms to
the legal form of the general partnership and the limited
registered partnership (Kommandit-Erwerbsgesellschaft:
KEG) which conforms to the legal form of the
limited partnership. Common to all registered partnerships
is that they are, as their name suggests, registered in
the Companies Register, even though they operate a
small-scale business.
The main statutory authority is the currently valid version
of the Commercial Partnership Law 1990 (Erwerbsgesellschaftengesetz:
EGG).
6.2.5. Silent partnerships
The silent partnership (stille Gesellschaft) participates
in a business undertaking by making a capital contribution
without making its involvement as partner
known externally. The silent partnership is a pure undisclosed
partnership (reine Innengesellschaft). The owner
has sole right to the assets of the commercial undertaking,
with the capital contribution of the silent partner also
passing into the ownership of the owner, and rights
and obligations are created solely in his name. On the
other hand a silent partner in principle shares in the profits
and also in the losses, and it has a right of control over
the management.
The formation of a silent partnership has no requirement
for any particular legal form. Its legal basis is the
currently valid version of the Austrian Commercial Code
and, in particular, of the General Civil Code.
6.2.6. European Economic Interest Grouping
It has been possible to set up a European Economic Interest
Grouping (EEIG) (Europäische Wirtschaftliche Interessensvereinigung:
EWIV) in Austria since 1995 85 .
An important feature of an EEIG is its cross-border
character, as the EEIG must consist of at least two members
who have their main administration or exercise their
main business activity in different EU member states 86 .
If this ceases to be the case it is a mandatory reason for
dissolving the EEIG 87 .
The purpose of an EEIG is solely to further the economic
activity of its members. In this regard the EEIG is
only permitted to undertake an ancillary economic activity,
which must have a close connection with its main
business activity, and must be non-profitmaking as far
as the EEIG itself is concerned. An EEIG can, for example,
be set up for the following purposes: purchasing
pool, co-operation relating to research and product development
and customer services.
81 Art. 105 ABGB (General Civil Code)
82 Art. 124 ABGB (General Civil Code)
83 Art. 114 ABGB (General Civil Code)
84 Art. 161 ABGB (General Civil Code)
85 The main source under EU law is Council Regulation (EEC) 2137/85
of 25th July 1985 on the creation of a European Economic Interest
Grouping (EEIG).
86 Art 4 para. 2 EEIG Council Directive
87 Art 31 para. 3 EEIG Council Directive