ARTICLES and NOTES - Notarius International

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144 T. Antenreiter, National Report Austria Notarius International 3-4/2002 The most important consequences of this situation are shown in the legal form of the public limited company, in that the shareholder’s personal liability is excluded and the basic capital is divided up into standardised portions, namely shares, which are legally and practically relatively easy to transfer. The company’s operational activities are dealt with by special executive organs of the company, and it is for this reason that strong protective measures in favour of the shareholders and creditors have to be observed. The basic capital of the company amounts to 70,000.00 €and is divided up into shares which can either be issued as par-value shares (Nennbetragsaktien) or as no-par-value shares (Stückaktien) 95 . Par-value shares are issued for a particular amount, which must be at least €1.00 or a multiple thereof. No-par-value shares have no face value and for this reason the extent of participation in the public limited company merely results from the proportion one share bears to the other no-par-value shares, because in this case there is only a single denomination. There are two different methods of forming a public limited company, namely single-step formation or formation through simultaneous subscription of all the shares (Einheitsgründung/Simultangründung) and incorporation by stages or successive formation (Stufengründung/Sukzessivgründung). The only practical significance is with single-step formation, where the promoters subscribe to all the shares along with the obligation to pay their contributions in the amount of the issue price, with at least one quarter of the basic capital having to be paid up in accordance with regulations. In the case of incorporation by stages only a part of the basic capital is subscribed to by the promoters and the remaining amount is offered to a wider public, so that numerous complicated protective measures have to be observed, which has prevented this type of formation from becoming more widespread 96 . There has to be a written company contract (memorandum and articles of association) between the shareholders in the form of a notarial instrument. The contract must, as a minimum, contain the following: - company name with the suffix “Aktiengesellschaft” or a corresponding abbreviation (AG) - registered office - company objects - basic capital and share denominations (no-par-value or par-value shares) - executive organs of the company - duration of the company - apportionment of formation costs. A public limited company is a legal entity and thus an independent holder of rights and duties; it is represented externally by the management board, which in turn is appointed by the supervisory board. The legal entity comes into being in external terms upon its computerised registration in the Companies Register of the Republic of Austria. All public 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 memorandum and articles of association - resolution of the supervisory board (Aufsichtsrat) concerning the appointment of the management board (Vorstand) and its authority to represent the company - formation report by the promoters - management board and supervisory board (Aufsichtsrat) reports - specimen signatures of the members of the management board - bank confirmation evidencing the paying in of at least one quarter of the basic capital - self-assessment declaration or fiscal clearance certificate from the Tax Office as proof of payment of the Capital Contribution and Transfer Tax (1% of the paid-up share capital) 97 - apportionment of formation costs. The involvement of a notary is necessary in relation to the establishment of the memorandum and articles of association and additionally, for example, in relation to subsequent share subscriptions by the promoters, the appointment of the first supervisory board and of the auditor for the first annual accounts, in relation to all resolutions of shareholders’ meetings and also in the case of various re-organisation measures (mergers, split-offs and conversions) 98 . The main statutory source is the currently valid version of the Law on Public Limited Companies 1965 (Aktien- Gesetz). 6.3.4. Co-operatives The Law on Co-operatives (Genossenschaftsgesetz: GenG) defines co-operatives (Genossenschaften) as associations with an open number of members, which essentially serve to further the income or business of their members 99 . Co-operatives occupy a half-way position between personal companies and companies limited by shares. The features of companies limited by shares which they possess are legal personality and limited liability for their members. Formation requires articles of association entered into in writing (statutes) with a certain minimum content 100 . As membership is open and each member must subscribe to a share in the co-operative, the capital of the co-operative is also variable. As a rule the executive or- 95 Arts.7 and 8 Law on Public Limited Companies 96 Second part of the Law on Public Limited Companies (Arts.16 to 47 Law on Public Limited Companies) 97 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) 98 See Wagner/Knechtel, Law on Notaries Public, on Art. 1 Law on Notarial Instruments, page 695 99 Art. 1 Law on Co-operatives 100 Art. 5 Law on Co-operatives
Notarius International 3-4/2002 T. Antenreiter, National Report Austria 145 gans of the co-operative, namely the management board and the supervisory board are appointed from within the circle of co-operative members. The co-operative acquires the status of an incorporated body upon its registration in the Companies Register 101 . The most important statutory source is the currently valid version of the Law on Co-operatives 1873 (Genossenschaftsgesetz). 6.4. Private foundations A private foundation (Privatstiftung) is an independent legal entity, to which the founder donates assets in order to aid the fulfilment of a permitted purpose stipulated by the founder through the use, management and exploitation of the assets 102 . When the founder has reserved the right to do so, the private foundation can also be revoked. A private foundation is not permitted 103 - to exercise a commercial activity which goes beyond a merely ancillary activity - to take over the management of a company or - to be a personally liable member of a commercial partnership or of a registered partnership. The name of the private foundation must include the word “Privatstiftung” unabbreviated. The foundation assets must amount to a minimum of 70,000.00,– €. A private foundation is established by means of a foundation declaration in notarial form and it comes into being upon its registration in the Companies Register. The Law on Private Foundations (Privatstiftungsgesetz: PSG) lays down what must be included in the foundation declaration in Art. 9 para. 1 and further possible points are set forth in Art. 9 para. 2. The executive organs of the private foundation are the board of the foundation, which must consist of at least three members, none of whom can be a beneficiary, the foundation auditor and, if applicable, a supervisory board. Along with the foundation charter, which has to be deposited with the Companies Register and is thus publicly accessible, there is the possibility of drawing up a supplementary foundation charter which does not have to be submitted to the Companies Register and therefore normally deals primarily with the assets donated to the foundation 104 . Upon registration in the Companies Register the following documents have to be produced: - an officially authenticated copy of the foundation charter - the officially authenticated declaration by all members of the board that the foundation assets are at their free disposal - a bank confirmation concerning the sum of money donated - a report by an auditor involved in the establishment of the foundation if the minimum value of the assets is not supplied in Austrian currency. The principal source of law is the currently valid version of the Law on Private Foundations 1993. 7. Private international law 7.1. General Austrian private international law is principally regulated by the Private International Law Statute 1978 (IPR-Gesetz) in its currently valid version. Austrian private international law specifies separate conflict of laws rules for the individual fields of law and proceeds on the principle of reference to a foreign law in its totality, including its conflict of laws rules (Gesamtverweisung), meaning that the doctrine of renvoi by way of remission (Rückverweisung) and transmission (Weiterverweisung) must be followed 105 . 7.2. Law of obligations 7.2.1. Governing law in relation to contractual obligations With regard to the connecting factor applicable in relation to contractual obligations, the Austrian provisions contained in Arts. 36 to 45 of the Private International Law Statute were repealed and since 1.12.1998 have been replaced by the European Convention on the Law Applicable to Contractual Obligations of 19.6.1980. Under the Convention, what is decisive for determining the applicable law is primarily the parties’ freedom of choice of law 106 ; of secondary importance is the principle of the closest connection 107 , in relation to the determination of which there are various statutory presumptions 108 . 7.2.2. Agency and capacity Questions of agency and of legal and contractual capacity do not, in principle, come under the Convention 109 , but nevertheless Art 11 of the Convention does offer the protection of trust in the legal and contractual capacity rules in the place where the contract is concluded. Under Austrian private international law the law applicable in relation to authority to act is established having reference to the law specified as applicable by the principals, or otherwise in accordance with the law of the place where the agent acts 110 . 101 Art. 8 Law on Co-operatives 102 Art. 1 Law on Private Foundations 103 Art. 1 Law on Private Foundations 104 Art. 10 Law on Private Foundations 105 Art. 5 IPRG (Private International Law Statute) 106 Art. 3 European Convention on the Law Applicable to Contractual Obligations 107 Art. 4 para. 1 European Convention on the Law Applicable to Contractual Obligations 108 Art. 4 para. 2 to 5 European Convention on the Law Applicable to Contractual Obligations 109 Art. 1 para. 2 f European Convention on the Law Applicable to Contractual Obligations 110 Art. 49 IPRG (Private International Law Statute)
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