Limited Liability Company (Austria)

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The Austrian company with limited liability (mostly abbreviated GmbH , formerly also GesmbH or Ges.mbH ) is a legal person under private law and belongs to the group of corporations .

Legal bases

The central legal source is the law of March 6, 1906 on companies with limited liability ( GmbH Law - GmbHG for short ), last amended by the Federal Law, Federal Law Gazette I No. 13/2014. In addition, there are important regulations in some other laws, e.g. B. for demerger ( SpaltG ), for conversion ( UmwG ) or for a nominal capital increase ( KapBG ).

General

There is no legal definition of this legal form in the GmbHG . It is characteristic of the GmbH that its shareholders participate in the share capital with initial contributions and receive shares for this contribution. Beyond that, they generally have no further property law obligations and they are generally not liable for corporate liabilities. After sole proprietorship, it is the most frequently chosen legal form in Austria and is particularly popular in small and medium-sized enterprises . As a legal person, it has legal capacity and can therefore own its own assets, be a contractual partner and can both sue and be sued. Unlike partnerships ( open company (OG) , limited partnership, etc.), it is an entrepreneur by virtue of its legal form and therefore has the status of an entrepreneur regardless of the actual operation of a company.

Every GmbH must have a general assembly and management . A supervisory board is only mandatory in a few cases, but it can be set up voluntarily.

founding

When establishing the company, a distinction is made between the time of construction and the time of origin. The phase in between is called the foundation phase. With the entry of the GmbH in the commercial register (so-called creation, the entry has a constitutive effect, i.e. legally establishing) the establishment is completed. The GmbH can be established for any legally permissible purpose ( § 1 GmbHG). The specific activity with which this purpose is to be achieved must be permitted and must not be reserved for another legal form.

If the GmbH pursues ideal goals, it can also apply for non-profit status ( gGmbH ). Similar to the association, indispensable or dispensable auxiliary companies can also be run in addition to activities for non-material purposes.

Establishment of the GmbH

The establishment of the company is understood to mean the point in time at which the company agreement was concluded (referred to as the articles of association for a stock corporation , but also used colloquially for GmbH company agreements) by the shareholders. If the GmbH is only established by one person, it is referred to as a declaration of establishment (cf. § 3 GmbHG). The conclusion of a partnership agreement or the declaration of the establishment of the company in the case of a 1-person formation requires notarial certification ( § 4 GmbHG). The legal minimum content is set out in § 4 GmbHG, according to which the contract or declaration must at least regulate the following:

  • The company and the seat of the company
  • the object of the company
  • the amount of the share capital . This must amount to at least EUR 35,000 ( § 6 GmbHG). However, a foundation privilege can be claimed in the articles of association, so that the share capital is only at least EUR 10,000. This foundation privilege is limited to 10 years, after which the share capital must reach at least 35,000 EUR. ( Section 10b GmbHG)
  • the amount of the contribution to be made by each partner on the share capital (share capital)

Further regulations can be included in the statutes, for example

Creation of the GmbH

With the conclusion of the articles of association, the company enters the founding stage. During this time:

  • Appointment of the first managing director , unless this has already been done in the articles of association
  • Performance of deposits
    • In the case of cash contributions, at least a quarter of the amount must be paid, but at least EUR 17,500 in total ( Section 10 GmbHG). In the case of foundation privileges (see above), at least EUR 5,000 must be paid in cash and contributions in kind are not permitted. ( Section 10b GmbHG)
    • Contributions in kind are to be made immediately and in full ( § 10 GmbHG)
  • Registration of the GmbH in the commercial register at the commercial register court by all managing directors. The following must be enclosed with the commercial register application:
    • Articles of association in notarial copy,
    • Appointment decision of the managing director (if not already done in the articles of association)
    • Sample drawings of the managing directors
    • Declaration by the managing directors about the contributions made (so-called § 10 declaration)
    • Bank confirmation of the payment of the cash deposits
    • Clearance certificate from the tax office

With the entry in the commercial register, the GmbH (constitutive entry, § 2 GmbHG) is created. When registering a GmbH with two shareholders and a managing director, entry fees of EUR 31 and EUR 272 registration fees are incurred. These fees do not apply if the Start-up Promotion Act is applicable.

organization

executive Director

The GmbH must have at least one managing director. The managing director must be a natural person capable of acting ( Section 15 GmbHG). Managing directors can be appointed by resolution of the shareholders or already in the articles of association, in certain cases an appointment by the court may also be considered (so-called emergency managing director, § 15a GmbHG). The managing director is the central management and representative body of the GmbH. If several persons are appointed as managing directors, they exercise management and representation jointly, unless the articles of association provide otherwise ( § 21 GmbHG). They have to fulfill the obligations assigned by law or the articles of association and are bound by the instructions of the shareholders. The managing directors must exercise the care of a prudent businessman in their management ( § 25 GmbHG), otherwise they are liable to the company for any damage incurred.

Supervisory board

A supervisory board only needs to be formed in a GmbH in a few cases ( Section 29 GmbHG), especially if

  • the share capital exceeds 70,000 euros and more than 50 shareholders are involved or
  • the number of employees exceeds 300.

A supervisory board can, however, be set up voluntarily.

If a supervisory board is formed, it must consist of at least three capital representatives ( Section 30 GmbHG). Furthermore, in the Works requiring businesses at least two employee representatives to send ( § 110 ArbVG). The members of the supervisory board must be natural persons capable of acting and may not be managing directors in the same company or a subsidiary at the same time ( Section 30a GmbHG). The shareholders 'representatives are elected by a shareholders' resolution ( Section 30b GmbHG). However, it is also possible for individual shareholders to be assigned rights of assignment as stipulated in the articles of association ( Section 30c GmbHG) and an appointment by the court in certain cases ( Section 30d GmbHG).

The supervisory board is the central controlling body of the GmbH. The primary task is therefore primarily to monitor the management. In addition, the supervisory board reviews the annual financial statements, represents the GmbH in legal disputes with managing directors and should be asked for approval by the managing director for certain transactions ( Section 30j GmbHG).

General Assembly

The general assembly is the general decision-making body of the GmbH. It consists of the entirety of the shareholders and decides by means of resolutions ( § 34 GmbHG) for which i. d. Usually a simple majority (50% + 1 vote; § 39 GmbHG) is sufficient. In order to pass resolutions, the items named in ( § 35 GmbHG) are primarily assigned to it:

  • Examination and approval of the annual financial statements
  • Calling in outstanding capital contributions
  • Assertion of compensation claims by the company against managing directors and members of the supervisory board
  • Conclusion of contracts with a remuneration of more than 20% of the share capital (so-called large investments)
  • Appointment / dismissal of managing directors ( § 15 GmbHG)
  • Appointment / dismissal of members of the supervisory board ( § 30b GmbHG)
  • Changes to the articles of association ( Section 49 GmbHG), a 3/4 majority is required here (see Section 50 GmbHG)

Every shareholder who is entered in the commercial register is entitled to vote ( Section 78 GmbHG). One vote is awarded for every ten euros of capital contribution taken, unless otherwise stipulated in the articles of association ( Section 39 GmbHG).

Rights and duties of the shareholders

Shareholder rights and obligations are associated with every business share. In principle, the shareholder can freely dispose of his business share, unless the articles of association provide otherwise (so-called transfer restrictions , § 76 GmbHG). The transfer of GmbH shares among the living requires an Austrian notarial act ( § 76 GmbHG). This applies to the obligation and disposition business . This form must also be observed for both legal acts when the transaction is broken down into offer and acceptance .

right

The central property right of the shareholders is their share in the annual surplus . They are entitled to the part of the annual profit that falls on their respective participation, provided that the profit distribution is not made dependent on a shareholder resolution in the articles of association and these resolve otherwise ( Section 82 GmbHG). In addition, there are certain (co-) administrative rights such as participation, information and voting rights in the general assembly.

Duties

The main obligation of every shareholder is the performance of his / her capital contribution ( § 63 GmbHG). If a partner does not make his contribution, he can be excluded from the company under certain conditions (so-called cessation , § 66 ff. GmbHG). The statutes could expressly provide for an obligation to make additional contributions; It is not clear whether there is a statutory obligation to make additional contributions without such a provision in the articles of association. As a matter of principle, he is not subject to any further property law obligations, in particular he is only liable for company liabilities in rare cases (so-called liability privilege ; § 61 GmbHG). In this respect, the term "limited liability company" is a misnomer: the company itself is liable with all of its assets, while the shareholders are not liable after making their contribution. Therefore, only the partner has limited liability, namely with his contribution and not with his private assets.

Termination of Society

The termination of the GmbH takes place in several steps. First of all, a reason for dissolution is required. If this is the case, the GmbH enters the processing stage ( liquidation , § 89 ff. GmbHG). Once all transactions have been terminated and the assets distributed, they are deleted from the commercial register ( Section 95 GmbHG). Only with this deletion and the termination of the business does the legal existence of the GmbH end.

For reasons of dissolution, § 84 GmbHG u. a .:

  • Expiry of the time specified in the articles of association
  • Decision of the shareholders
  • Opening of bankruptcy proceedings

When there is a reason for dissolution, the company changes its purpose and changes from an advertising company to a settlement company. In the liquidation, the business of the GmbH is terminated, creditor claims are satisfied and the remaining assets are distributed among the shareholders. These activities are carried out by the managing directors as liquidators, unless the articles of association provide otherwise or the shareholders choose other persons by resolution.

literature

Individual evidence

  1. ↑ Walter Brugger : On the form requirement (PDF; 335 kB) at www.profbrugger.at, requested on November 6, 2009
  2. ↑ Walter Brugger , No application of § 1184 Paragraph 2 ABGB , requested on July 28, 2016.

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