ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 T. Antenreiter, National Report Austria 143
A written contract of formation must be concluded
and registered by all members in the Companies Register.
Registration brings the EEIG into being. From this
time the EEIG is an independent holder of rights and duties,
it is a trading company (Handelsgesellschaft) within
the meaning of the Commercial Code and a merchant by
virtue of its legal form, but it is not a legal entity 88 . The
main statutory source is the currently valid version of the
European Economic Interest Grouping Implementation
Law 1995 (EWIV-Ausführungsgesetz: EWIVG).
6.3. Associations and companies limited by shares
6.3.1. Association
An association (Verein) is a combination of several entities
with separate legal personality for the attainment
of a joint purpose; it cannot, however, be set up for the realisation
of profits 89 . The rules and regulations governing
it can, in principle, be agreed freely, but they must then
be submitted to and lodged in writing with the competent
authority, which in exceptional cases can refuse the
formation of the association within a certain time limit.
A central register of associations does not exist at the
present time in Austria, but provision has already been
made for such a register by statute. The source of law is
the currently valid version of the new Law on Associations
2002 (Vereinsgesetz).
6.3.2. Private limited companies (GmbH)
The private limited company (Gesellschaft mit beschränkter
Haftung: GesmbH or GmbH) is the most
commonly used legal form in Austria for a company limited
by shares and it involves one or more shareholders
participating in the company by making capital contributions.
The minimum share capital of the company must
be 35,000.00 € of which at least one half must be paid up
when the company is formed 90 . The participating members
are in principle only liable to the extent of the
amount of their capital contribution and not to the extent
of their other personal assets.
For the formation of a private limited company there
has to be a written company contract (equivalent to the
UK memorandum and articles of association) between
the members or a declaration concerning the incorporation
of a company in the case of a sole shareholder
(single-member incorporation), in both cases in the
form of a notarial instrument 91 . The company contract
or declaration must contain the following:
- company name with the suffix “Gesellschaft mit beschränkter
Haftung” or a corresponding abbreviation
(Ges.m.b.H., GesmbH, G.m.b.H., GmbH)
- registered office
- company objects
- share capital
- name of the participating members and the amount of
the initial contribution of each member
- duration of the company
A private limited company is a legal entity and thus an
independent holder of rights and duties; it is represented
externally by one or more directors. The legal entity
comes into being in external terms upon its computerised
registration in the Companies Register of the Republic
of Austria 92 . All private limited companies have
merchant status through their registration in the Companies
Register.
The following documents are necessary in every case
for registration in the Companies Register:
- an official copy of the company contract or the declaration
concerning the incorporation of a private limited
company
- members’ resolution concerning the appointment of
the director or directors and their authority to represent
the company
- specimen corporate signature by the director or directors
- bank confirmation evidencing the paying in of at least
half of the share capital
- self-assessment declaration or fiscal clearance certificate
from the Tax Office as proof of payment of the
Capital Contribution and Transfer Tax (Gesellschaftssteuer)
(1% of the paid-up share capital) 93
The involvement of a notary is further necessary, for
example, in the case of declarations concerning acceptance
of new capital contributions, the transfer of shares
and agreements concerning the future assignment of
shares, resolutions concerning changes to the company
contract and the dissolution of the company, and also in
the case of various re-organisation measures (mergers,
split-offs and conversions) 94 .
The main statutory source is the currently valid version
of the Law on Private Limited Companies 1906 (GmbH-
Gesetz).
6.3.3. Public limited companies (AG)
The public limited company (Aktiengesellschaft: AG)
is the classic basic form for a company limited by shares.
In contrast to personal companies, the personal labour input
of the shareholders is not the main focus, but rather
their capital contributions. As a rule it is a characteristic
of a public limited company that its shareholders’ professional
interests lie elsewhere and the capital contribution
is viewed merely as an investment. Accordingly, the
management and control have a greater significance than
is the case with personal companies.
88 Art.1 EEIG Implementation Law
89 Art. 1 Law on Associations
90 Arts. 6 and 6a Law on Private Limited Companies
91 Art. 4 Law on Private Limited Companies
92 Art. 2 Law on Private Limited Companies
93 Self-assessment of the Capital Contribution and Transfer Tax operates
in the same way as self-assessment of Property Transfer Tax. On
self-assessment see in detail No. 8. (Tax law)
94 See Wagner/Knechtel, Law on Notaries Public, on Art. 1 Law on Notarial
Instruments, page 695