Invest in Austria. Legal Aspects of Establishing a Company in Austria. Bucharest I 21 October Markus Piuk / Clemens Leitner

Transcription

1 Invest in Austria Legal Aspects of Establishing a Company in Austria Bucharest I 21 October 2014 Markus Piuk / Clemens Leitner

2 Corporate Set Up for doing business in Austria Major legal forms are partnerships and corporations Partnerships: established for the achievement of a common goal by personal involvement and dedication of partners General partnership (Offene Gesellschaft; OG ) (Romanian equivalent: societate in nume colectiv) Limited partnership (Kommanditgesellschaft; KG ) (Romanian equivalent: societate in comandita simpla) Corporations: established for the achievement of a common goal by limited use of capital by shareholders. Legal forms of corporations are Limited liability company (Gesellschaft mit beschränkter Haftung; GmbH ) (Romanian equivalent: societate cu raspundere limitata) Stock corporation (Aktiengesellschaft; AG ) (Romanian equivalent: societate pe actiuni) 2

3 Statistics Corporations New establishments (2013) GmbHs: 3,498 AGs: 9 Total numbers (2011) GmbHs: 75,014 AGs: 1,038 3

4 Corporate Set Up for doing business in Austria Common aspects of GmbH and AG independent legal entity can pursue every lawful objective generally no governmental permission or authorization required (exception: regulated activity e.g. banking) can be founded by one or several shareholders comes into legal existence upon registration with the commercial register 4

5 Corporate Set Up for doing business in Austria Common aspects of GmbH and AG shareholders are not personally liable for liabilities of the company corporate bodies are the management board, the shareholders meeting and the supervisory board (obligatory for AG and for certain GmbHs) shareholders can be Austrian/foreign and natural or legal persons required to maintain accounts and file these with commercial register can be set up by a single shareholder 5

6 Corporate Set Up for doing business in Austria Key differences between GmbH and AG GmbH AG Organization Stronger influence of shareholders High degree of organization, fewer ways for shareholders to exercise influence Transfer of shares Requires notarial deed No formal requirements Supervisory board (SB) Senior management Instructions Only required in certain cases (e.g. > 300 employees) Managing directors appointed by shareholders for indefinite period of time; can be removed at any time without cause Shareholders are entitled to issue binding instructions to management board members Mandatory Management board members are appointed by the SB for a maximum of five years. Removal requires cause. Shareholders or SB are not entitled to issue instructions to management board members 6

7 Corporate Set Up for doing business in Austria shareholders resolutions Shares Voting rights GmbH Passed at shareholders meetings or by circular resolution Are only a stake in the company minimum participatory amount is 70 Each shareholder must at least have one vote. AG Passed at general shareholders meetings only No circular resolutions Minutes have to be submitted to commercial register and are accessible to general public Shares can have nominal values or represent a proportionate amount of at least 1 or a multiple Shares can be voting or non voting preference shares Preference shares can be up to 1/3 of the share capital. 7

8 Establishment of a GmbH Corporate Set Up for doing business in Austria Basic requirements: The Articles of association (AoA; declaration of establishment, if founded by a single shareholder) have to be drawn up as an Austrian notarial deed. Managing directors have to be appointed either in the AoA or by shareholders resolution. Payment of share capital (at least EUR 17,500 prior to the application for registration (exceptions to follow)). If the company is established by way of contribution in kind instead of a cash payment, foundation/contribution has to be audited by a certified auditor. All managing directors have to file an application for registration with the commercial register of the competent commercial court. 8

9 Corporate Set Up for doing business in Austria Share capital Shares The minimum share capital is EUR 35,000, to be paid in at least by half (i.e. EUR 17,500) in cash (exceptions to follow). Each shareholder may only hold one share quota (Geschäftsanteil). Each shareholder s share quota is determined by the amount of the subscribed nominal share capital. The minimum (contribution share quota) is EUR 70. The shareholders and their share quotas must be registered with the commercial register. 9

10 Corporate Set Up for doing business in Austria Shares are generally freely transferable and may be divided, inherited and pledged as security for an obligation. Shares can only be transferred by way of an Austrian notarial deed, otherwise the transfer is null and void. Foundation costs: 1% capital tax; court fees of approx EUR 400; plus notarial fees (approx EUR 1000 onwards) Shelf Companies? 10

11 Minimum Share Capital Reform and Reform of the Reform 2012 Amendment to the minimum share capital Minimum share capital: EUR 10,000 EUR 5,000 needed to be contributed in cash 2014 Amendment to the amendment to the minimum share capital Minimum share capital: again EUR 35,000 but: First 10 years: foundation privilege minimum share capital EUR 10,000 EUR 5,000 needed to be contributed in cash After 10 years: payment of additional funds so that are contributed in cash 11

12 Grants Variety of grants available to entrepreneurs in Austria (mostly based on EU guidelines) Targeted on regional development, SMEs, technology and environment Mostly in the forms of low-interest loans, guarantees and other capital contributions In particular: Start-up enterprises Neugründungsförderungsgesetz ( NeuFöG ) Exemption from certain taxes and duties in relation to the establishment of a company (e.g. court filing fees; corporate taxes; notary fees (under specific circumstances)) 12

13 Corporate Set Up for doing business in Austria Establishment of an AG Basic requirements: The Articles of association (AoA) have to be drawn up as an Austrian notarial deed. It has to contain in particular information whether bearer shares or registered shares are issued. The founders of the company have to subscribe all shares. The founders have to appoint the first supervisory board. The supervisory board appoints the first management board. The founders issue a written report on the course of the company s formation. The members of the management board and the supervisory board verify the course of the formation of the company. 13

14 Corporate Set Up for doing business in Austria The shareholders have to pay at least a quarter of the lowest issuing price and if shares are issued at a premium, such premium If the company is established by contribution in kind, the foundation/contribution has to be audited by a certificated auditor. All founders and members of the management board and the supervisory board have to file an application for registration with the commercial register. 14

15 Corporate Set Up for doing business in Austria Share capital The minimum share capital is EUR 70,000 and has to be paid in prior to application for registration of the company with the commercial register. At least 25% of the share capital must be paid up in cash. Bearer shares or registered shares The AoA must set forth whether bearer shares or registered shares are issued. Registered shares are mandatory. Bearer shares may only be issued if the company is listed or a listing is intended. Registered shares must be entered into the company s share book stating the name, the occupation and the place of residence of the shareholder. Registered shares can not be traded on the VSE. With respect to the company, only such persons/companies are deemed shareholders who/which are registered as such in the share book. 15

16 Corporate Set Up for doing business in Austria Preferred shares may be issued without voting rights. Their owner receives a preferred dividend. If the dividend is not paid, the shareholder will be granted full voting rights until the preferred dividend is paid. Shares are not divisible but are freely transferable and may be inherited and pledged. The transfer of shares does not require a notarial deed. Foundation costs: 1% capital tax; court fees of approx EUR 800; plus notarial fees (approx EUR 2000 upwards) 16

17 Separate Legal Entity or Branch? Advantages and Disadvantages not an independent legal entity economically independent and geographically separated permanent establishment of a foreign company independent organization and management must be registered in the commercial register at the seat of the branch if corporate headquarters are outside EU/EEA, it must have a permanent representative resident in Austria must keep its own accounts 17

18 Separate Legal Entity or Branch? filing process not easier than for setting up GmbH (e.g. proof of actual establishment required) market recognition / image typically favoured by financial institutions because of EEA license passporting branch s activities also require (trade) license and subject it to income and VAT taxation employees of the branch must be registered with social security 18

19 Trade Law Aspects General Sole traders and companies from EU Member States are permitted to provide services on a temporary and occasional basis without the need for a permanent foreign subsidiary (throughout the EU). They must ensure that they adhere to the relevant legislation of the Member States in which they intend to provide their services. In case of regulated business activities, advance notification must be given before taking up the activity for the first time (notification of services). 19

20 Trade Law Aspects Trade law regulations distinguish between non regulated business activities: no special qualification required regulated business activities: special qualification required regulated sensitive business activities: special qualification and documentation of reliability (criminal records) required If a business activity is performed on a cross border basis prior notification to the Federal Ministry of Science, Research and Economy required for regulated and regulated sensitive business activities via a permanent establishment in Austria (branch or legal entity) appropriate trade law authorization needs to be obtained 20

21 Trade Law Aspects Cross border services non regulated business activities: no special qualification/notification required, however local Austrian trade regulations need to be complied with regulated ( sensitive ) business activities: special qualification and prior notification to BMWFJ required; BMWFJ has one month to take a decision no special qualification required if business activity (i) is also regulated in home state or (ii) if it has been carried out in the home state for at least two years within the preceding ten years for certain business activities the BMWFJ may require supplementary exam 21

22 Trade Law Aspects Permanent Establishment Non-temporary and non-occasional basis Trade authorization required from local trade authority Branch / legal entity has to appoint one natural person as trade law managing director (commercial law managing director resident in Austria or at least half time working employee) 22

23 Employment Law Aspects General Under the EU freedom to provide services companies are allowed to utilise their own personnel to provide services in Austria. Austria exercised the option of establishing transition periods for free movement of workers and free movement of services in Romanian EU accession treaty. This transition period lapsed on 31 December As of January 2014, Romanian citizens do not require a work permit / residence permit anymore. 23

24 Employment Law Aspects Lease-out of Employees (Arbeitskräfteüberlassung) No work permit required for Romanian citizens However, certain notification requirements have to be adhered to (sanctioned with (administrative) fines) Trade law aspects (generally regulated trade) Caveat: minimum salaries in collective bargaining agreement 24

25 Contacts Schönherr Rechtsanwälte GmbH / Schoenherr şi Asociaţii SCA Markus Piuk T: m.piuk@schoenherr.eu Clemens Leitner T: c.leitner@schoenherr.eu 25

26 thank you!