Aktiengesellschaft (Austria)
The stock corporation (abbreviation: AG) is one of two forms of corporation in Austria alongside the GmbH . The legal basis can be found in the Stock Corporation Act (AktG).
founding
In the establishment of an AG in Austria , more than one person had to take part and take over the shares in return for contributions. Since October 8, 2004, a one-man start-up has also been possible.
The establishment of stock corporations in Austria found a focus at very different times:
| founding year | |
|---|---|
| before 1950 | 5% |
| 1950 to 1959 | 2% |
| 1960 to 1969 | 2% |
| 1970 to 1979 | 5% |
| 1980 to 1989 | 15% |
| 1990 to 1999 | 25% |
| 2000 to 2009 | 30% |
| 2010 to 2018 | 16% |
Share capital
The corporate assets of an AG are called share capital or nominal. The share capital of an AG in Austria is at least 70,000 euros and is divided into shares. It is raised through the acquisition of the shares by the founder (s). There are par value shares and no- par shares (quota shares ). Par value shares are made out to a specific par value. The minimum nominal amount of a share is one euro. Higher nominal amounts must be in full euros. The shares may not be issued for an amount less than the nominal amount. No-par shares represent an arithmetical share in the share capital. This does not have to correspond to a smooth euro value. The liability of the AG is limited to the company's assets.
| Share capital | Number of AG in Austria |
|---|---|
| 70,000 € (share capital) | 10% |
| more than € 70,000 to € 1 million | 27% |
| more than € 1 million to € 10 million | 34% |
| more than € 10 million to € 50 million | 22% |
| more than € 50 million to € 100 million | 5% |
| more than € 100 million | 2% |
The stock corporations in Austria have balance sheet equity (as of 2018):
| Equity | Number of AG in Austria |
|---|---|
| negative equity | 5% |
| from 0 to 70,000 € | 4% |
| more than € 70,000 to € 1 million | 10% |
| more than € 1 million to € 10 million | 26% |
| more than € 10 million to € 50 million | 21% |
| more than € 50 million to € 100 million | 15% |
| more than € 100 million | 19% |
Registration for the commercial register
The stock corporation "arises" only with the entry in the commercial register (after examination and approval by the commercial register court, § 31 Austrian Stock Corporation Act), from this point in time it is a legal person under private law. Before that, the stock corporation as such does not exist, in this case one speaks of a "previous company", although the founders still have unlimited liability. However, the registration for entry in the commercial register presupposes that all shares have been taken over by the founders, that these founders have legally adopted a statute and that the first management board and supervisory board have been appointed. With their contributions to the share capital, the shareholders participate in the company (Section 1 of the Austrian Stock Corporation Act) and are only liable in the amount of the contributions (unless they do not pay in all of the contributions, in which case they are liable in the event of the insolvency of the Company also personally and without restriction - if they have not already been excluded from society).
organs
The corporation consists of three organs: the management board , the supervisory board and the general meeting .
Board of Directors (Management)
The board of directors leads the management of the stock corporation and represents the company, completely free of instructions (Section 70, Paragraph 1 of the Austrian Stock Corporation Act). He also has to report to the Supervisory Board on an ongoing basis. In addition, the board of directors prepares the annual financial statements and the business report and calls the general meeting. Management board members may not be members of the supervisory board.
The average remuneration of board members increases with the size of the stock corporation:
| Types of AGs | Annual payment per board member from - to |
Average earnings |
|---|---|---|
| Small AG and small AG |
€ 7,500 to € 350,000 | € 72,000 |
| medium-sized AG | 140,000 to 1,265,700 € | € 162,900 |
| large AG | € 4400 to € 328,800 | € 171,200 |
| 5-fold AG | € 147,500 to € 4,265,800 | € 456,300 |
Supervisory Board (controlling body)
The Supervisory Board is elected by the General Meeting for a maximum of 4 years. For every two members of the supervisory board, an employee representative must also be sent in accordance with Section 110 ArbVG, and if there is an odd number of capital representatives, another one (third parity). In principle, the supervisory board has no management authority; monitoring and implementation are strictly separated from one another in the stock corporation. However, the approval of the supervisory board must be obtained from the management board in certain cases required by law; furthermore, further cases in which the approval of the supervisory board must be obtained can be prescribed in the company's articles of association. The supervisory board appoints the management board and is entitled to remove it prematurely if there are important reasons (breach of duty, obvious inability).
The average remuneration of supervisory board members does not increase with the size of the stock corporation and is considerably lower than that of management board members. At 29% of the stock corporations, the members of the supervisory board do not receive any compensation:
| Types of AGs | Annual payment per supervisory board member from - to |
Average earnings |
|---|---|---|
| Small AG and small AG |
€ 400 to € 70,000 | 3100 € |
| medium-sized AG | 2800 to 16,700 € | € 6700 |
| large AG | € 700 to € 21,300 | 4400 € |
| 5-fold AG | € 600 to € 76,000 | € 21,200 |
General meeting (owner meeting)
The general meeting of the stock corporation consists of all shareholders . In principle, each share embodies one vote; However, it is also possible to agree otherwise in the articles of association, such as the issue of preference shares, i. H. Shares z. B. certify the right to a higher dividend distribution in combination with waiving the right to vote in the general meeting. The general meeting must be convened annually by the board of directors or the supervisory board, but stock corporation law also grants minority shareholders the right to request that the general meeting be called in certain cases. The owners' meeting decides, among other things, on changes in capital, conversion and dissolution of the stock corporation, but always on the adoption of the annual financial statements (and thus on any dividend distribution) and the discharge of the management board and the supervisory board. In addition, the general meeting also has the right to elect the members of the supervisory board. Decisions are made with a simple majority or with a “qualified” majority (3/4 majority), unless the articles of association of the stock corporation provide otherwise.
Shareholders
With the acquisition of shares you become co-owner of the stock corporation. The liability of the shareholders is limited to their contribution, i. that is, they can lose at most the capital invested in shares. Furthermore, they have no obligation to cooperate. Your right to control is precisely regulated by law. Major shareholders are people who own 5% or more of the shares.
The rights of the shareholders are:
-
Right to a share of the profits (the dividend )
- is given as a percentage of the share capital or per share
- Distributed profits will be transferred to the shareholder
-
Maintaining the share
- If new shares are to be issued (e.g. due to a capital increase), these must first be offered to the existing shareholders so that they can be sure that their share in the AG will be preserved
-
Liquidation proceeds
- if the AG dissolves, each shareholder has a percentage of the remaining proceeds
-
Right to participate in general meetings
- Voting right at general meetings
- Right to information on company matters that are necessary for the assessment of items on the agenda at the general meeting
- Right of contestation in the event of suspicion of a resolution not in accordance with the articles of association at the general meeting
The number of shareholders in Austrian stock corporations shows a differentiated picture:
| Number of shareholders | |
|---|---|
| 1 shareholder and de facto one-man AG | 40% |
| 2 shareholders (without de facto one-man AG) | 7% |
| 3 to 5 shareholders | 18% |
| 6 to 10 shareholders | 9% |
| 11 to 20 shareholders | 5% |
| 21 to 50 shareholders | 5% |
| 51 to 100 shareholders | 1 % |
| 101 to 500 shareholders | 6% |
| more than 500 shareholders | 9% |
Although the basic structure of the stock corporation also in Austria follows that of a public company (a large number of shareholders own shares), this picture has turned away from reality considerably. About 30% of the stock corporations in Austria have only one shareholder, in another 10% of the stock corporations one shareholder has at least 98% of the shares, the other holds a maximum of 2% (i.e. de facto one-man AG). In the case of listed AGs, 67% have only one majority shareholder.
The legal form of sole shareholders and majority shareholders in Austrian stock corporations is as follows:
| shareholder | |
|---|---|
| foreign company, foundation etc. | 27% |
| Austrian GmbH | 22% |
| Austrian AG | 15% |
| Austrian private foundation | 14% |
| natural person | 9% |
| Austrian partnership (including GmbH & Co. KG ) | 4% |
| Austrian savings bank | 3% |
| public sector in Austria | 3% |
| Austrian cooperative | 1 % |
| Others | 2% |
Types of public companies
The law distinguishes between different types of stock corporations, B. in listed and unlisted stock corporations. Section 221 UGB distinguishes between small AG, small AG, medium-sized AG, large AG and Section 271a UGB still recognizes the 5-fold large AG.
| Total assets | Sales revenue | Employee | |
|---|---|---|---|
| Small AG | up to € 350,000 | up to € 700,000 | until 10 |
| small AG | up to € 5 million | up to € 10 million | until 50 |
| medium-sized AG | up to € 20 million | up to € 40 million | up to 250 |
| large AG | more than € 20 million | more than € 40 million | more than 250 |
| 5-fold AG | more than € 100 million | more than € 200 million | more than 1250 |
Basically, two of the three criteria mentioned above must be met in order to be classified into the corresponding size class. However, only one of the three criteria has to be met for a 5-fold AG. The calculation of the threshold values is carried out for all AGs on a consolidated or aggregated basis. Stock corporations that are parent companies (Section 189a Z 6 UGB) have to calculate the threshold values according to Section 221 Paragraphs 1 to 2 UGB on a consolidated or aggregated basis.
If the structure is based on the number of employees at the stock corporations, it turns out that around 50% of the stock corporations registered in Austria only have up to ten employees:
| Number of employees |
|
|---|---|
| none or 1 | 36% |
| two to ten | 14% |
| 11 to 20 | 6% |
| 21 to 50 | 10% |
| 51 to 250 | 15% |
| 251 to 500 | 7% |
| 501 to 1000 | 6% |
| 1001 to 1250 | 1 % |
| more than 1251 | 5% |
In 2014 there were over 1,800 stock corporations registered in Austria, of which only around 100 were listed. On January 26, 2018 there were only 1106 stock corporations (with headquarters in Austria). Some of these are assigned to leading indices such as the ATX. See also the term stock exchange .
The stock corporations registered in Austria until 2018 were active in the following business sectors:
| Line of business | |
|---|---|
| Holding | 39% |
| Trade or commerce | 19% |
| Credit institutions | 13% |
| Industry | 11% |
| property | 6% |
| Mountain railways | 4% |
| Insurance | 3% |
| Pension funds | 2% |
| Others | 3% |
Public Interest Company
Companies (including joint stock companies) are of public interest:
- Companies whose transferable securities are for trading on a regulated market of a member state of the European Union or a signatory to the Agreement on the European Economic Area within the meaning of Art. 4 Paragraph 1 No. 21 of Directive 2014/65 / EU on markets in financial instruments and for Amendment to directives 2002/92 / EC and 2011/61 / EU, ABl. No. L 173 of June 12, 2014 p. 349;
- Corporations, the credit institutions within the meaning of Art. 4 Paragraph 1 No. 1 of Regulation (EU) No. 575/2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 646/2012, OJ. No. L 176 of June 27, 2013 p. 1 - with the exception of the provisions in Article 2 Paragraph 5 of Directive 2013/36 / EU on access to the business of credit institutions and the supervision of credit institutions and investment firms, amending Directive 2002 / 87 / EC and for the repeal of directives 2006/48 / EC and 2006/49 / EC, ABl. No. L 176 of June 27, 2013 p. 338, named credit institutions - are;
- Corporations, insurance companies within the meaning of Art. 2 Paragraph 1 of Directive 91/674 / EEC on the annual accounts and consolidated accounts of insurance companies, ABl. No. L 374 of December 31, 1991 p. 7, are or
- Companies that, regardless of their legal form, are referred to as such in an Austrian federal law with reference to this provision;
A company of public interest is always considered to be a large corporation.
| Types of AGs | Number of companies of public interest |
|---|---|
| Small AG | 8th % |
| small AG | 26% |
| medium-sized AG | 9% |
| large AG | 13% |
| 5-fold AG | 44% |
Individual evidence
- ↑ a b c d e Source: Johannes Reich-Rohrwig, Structure of Public Companies in Austria , ecolex 2018, p. 526.
- ^ Johannes Reich-Rohrwig: Structure of the stock corporations in Austria , ecolex 2018, p. 529.
- ^ Johannes Reich-Rohrwig: Structure of the stock corporations in Austria , ecolex 2018, p. 530.
- ↑ a b c Source: Johannes Reich-Rohrwig, Structure of Public Companies in Austria , ecolex 2018, p. 527.
- ^ Johannes Reich-Rohrwig: Structure of the stock corporations in Austria , ecolex 2018, p. 528.
- ^ Johannes Reich-Rohrwig: Structure of the stock corporations in Austria , ecolex 2018, p. 528 f.
- ↑ Section 221 (1a) of the UGB
- ↑ Section 221 (1) of the UGB
- ↑ Section 221 (2) UGB
- ↑ Section 221 (3) UGB
- ↑ § 271a UGB
- ↑ § 221 Paragraph 4a UGB.
- ↑ Walter Brugger , updates on the strictness of the statutes , queried on July 28, 2016.
- ↑ § 189a no. 1 UGB.
- ↑ Section 221 (3) UGB.
