Trade regulations 1994

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Basic data
Title: Trade regulations 1994
Abbreviation: GewO 1994
Type: Federal law or regulation
Scope: Republic of Austria
Legal matter: Trade law
Reference: StF: Federal Law Gazette No. 194/1994 (re-announcement)
Last change: Federal Law Gazette I No. 112/2018
Legal text: Trade Regulations as amended ( parl. Materials XX. GP )
Please note the note on the applicable legal version !

The trade regulation 1994 ( GewO 1994 ) is an Austrian law that regulates the independently practiced trades , the access to these and their practice. The provisions of the trade regulations have both liberal and restrictive features.

historical overview

The Industrial Code of 1859 , which came into force on May 1, 1860, was shaped by both the spirit of political centralism and economic liberalism. It unified the previously territorially different trade law and at the same time preserved freedom of trade . The vast majority of trades (craft, trade, ...) were free trades, only the start of activity was notifiable to the authorities. 14 trades were declared licensed trades with due regard for public interests in catering and accommodation, the transport of goods and people, fire protection and disease control and their practice was linked to formal conditions.

As a result of the stock market crash of 1873 and the subsequent economic crisis , there was a renaissance of guild -like economic thinking , which was also echoed in the trade regulations. In 1883, 12 craft trades (handicrafts) were added to the free trades (trade) and licensed trades as a third group. A certificate of competence was now required for both the exercise of the licensed trades and the craft trades. (Apprenticeship certificate and job reference for two years of employment as an assistant in a trade or in an analogue factory). In addition, the number of licensed commercial growing ( "for reasons of public order and security") on 21 and there were regulations on commercial operating systems , even selected operating responsibilities, the training of apprentices and cooperatives introduced.

In 1907 the entry barriers were increased - not least because of the political pressure of the commercial middle class . The exercise of the trade was now linked to a certificate of proficiency. The number of craft trades (handicrafts) was increased to 54 and a compulsory journeyman examination was made mandatory. A journeyman's examination and a three-year relevant period of employment were mostly used as proof of qualification. The requirement for the master craftsman's examination dates back to 1934.

Under the pressure of the global economic crisis and the ideas of the corporate state , 37 “bound trades” were introduced in 1934. Proof of use was also required here. The number of craft trades (crafts) has been increased to 59. The number of licensed trades grew to 52. In 1934, the prohibition law also replaced the two blocking ordinances from 1933 ( trade block ). The authority was now able to prohibit the opening of a commercial enterprise if this would affect competitive conditions in an economically unhealthy way.

The desire of the established tradesmen to make it more difficult for new competitors to enter the market thus prevailed after the global economic crisis.

From 1938 to 1948, Imperial German regulations also applied to trade law. They were replaced by Austrian law in 1948 and 1952 respectively. Despite the abolition of the prohibition law, there were still 47 tied trades, 79 craft trades and 58 licensed trades.

Due to the sometimes unclear demarcation between the individual trade licenses, there were often (sometimes long-term) conflicts of a sometimes bizarre nature, for example between bakers and confectioners over donuts . The need for fundamental reform grew.

In 1957, a resolution was therefore passed in the National Council requesting the responsible federal minister to establish the basis for a new trade regulation by way of a commission. This resulted in the 1973 trade regulations (sic), which should bring more freedom of trade again. The four trade categories were retained, however, registration trades (independent and tied trades and crafts) and licensed trades (requiring a license) were differentiated more precisely.

The path towards a more liberal trade regime proved difficult. The 1992 amendment to trade law did not change anything in the four trade categories, only the licensed trades were renamed as “restricted trades subject to authorization”. In 1994 the GewO 1973 was re-issued - it has been called GewO 1994 since then. The principle of freedom of trade, as it was laid down in the trade regulations of 1859, is still only partially implemented.

Business types

Since the 2002 amendment to the trade regulation, the trade regulations distinguish between three types of trade.

Free trades

No qualification is required for these (all professions that are not regulated trades). They may be exercised if the general requirements are met on the basis of registrations for the relevant trade. Examples: film production , graphic artist, trade , sewer clearers, tank cleaners or advertising agencies .

Regulated trades

In the case of regulated trades, the required certificate of qualification for this trade must be provided when registering the trade . Regulated trades that can be carried out in the form of an industrial company are usually excluded from the certificate of proficiency. Examples are butchers , management consultants , insurance agents , locksmiths , carpenters or beauticians .

Among the regulated trades there are reliability trades . These may only be exercised after a legally binding decision stating the particular reliability has been submitted. Examples are master builders , pyrotechnics companies , carpenters , financial advisors or arms dealers . On the other hand, the hospitality industry or the chemist , for example, do not have a reliability check .

Sub-trade

Sub-trades are activities of regulated trades, the independent execution of which can also be expected by people who can prove their qualification in a simplified manner ( e.g. final apprenticeship examination , practical periods). Examples: tailoring, nail salons, car glazing, bicycle technology or earthworks .

Requirements for obtaining a trade license

In the commercial exercise of an activity that is subject to the trade regulations, a trade license must be available. Authorization is obtained by registering a business if the conditions set out in the trade regulations are met. Commercial status exists when an activity is carried out independently, regularly and with the intention of making a profit .

As independently any activity on your true account and risk is exercised. Everyone acts independently who bears the entrepreneurial risk for losses or, among other things, for their own loss of earnings. An activity is considered to be “regularly exercised” if it is carried out repeatedly at certain time intervals. Even a one-off act is considered regular if, according to the circumstances of the case, it can be concluded with the intention of repeating or if it requires a longer period of time. Offering an activity to a larger group of people is also considered to be a trade. The intention to generate income exists if the intention is to achieve a remuneration that exceeds the costs associated with the activity . If losses are actually achieved, there may still be an intention to generate income (for example in the start-up phase of a company).

The basic condition for obtaining a trade license is the existence of general and special requirements for the exercise of a trade.

General requirements for sole proprietorships are:

For the regulated trades, there must be a professional authorization according to the trade regulations or engineering law, i.e. a certificate of qualification for a relevant vocational training, e.g. a degree or technical college course , diploma from a vocational college  (BHS) or a comparable course such as college , advanced course , Master school , or final examination of a vocational middle school  (BMS, technical school) and work experience.

General requirements for companies are:

  • No bankruptcy rejected or canceled due to lack of assets (insurance brokerage also opening of bankruptcy)
  • There are no grounds for exclusion in the case of persons with significant influence on the company's business operations, such as general partners or significantly involved shareholders , managing directors , etc.
  • Appointment of a suitable commercial manager

Holders of business licenses

A trade can only be registered by people who are recognized as holders of trade licenses according to the trade regulations. This includes:

Special requirements for regulated trades

In addition to the general requirements, special admission requirements must be met here. The certificate of proficiency depends on the registered trade and can be provided by master craftsman's examination , school leaving certificate or service certificates.

Grounds for exclusion

The reasons for exclusion are regulated in § 13 GewO 1994:

  • Previous convictions (including conditional) due to fraudulent crime , harming third-party creditors , favoring a creditor or grossly negligent impairment of creditors' interests, fraudulent withholding of social security contributions and surcharges under the Construction Workers, Vacation and Severance Pay Act or organized undeclared work ; in the hospitality industry: drug offenses.
  • Previous convictions (including conditional ones) for another criminal act with a conviction to a prison sentence of more than 3 months or a fine of more than 180 daily rates, no punishment for certain financial offenses.
  • A legally rejected bankruptcy due to lack of assets or canceled bankruptcy (in the case of insurance brokerage also opening of bankruptcy), as long as it is visible in the insolvency file (= 3 years).

Working across borders

Working over to Austria is the merely temporary and occasional execution of ordered commercial activities by entrepreneurs who have neither a registered office nor a branch in Austria. Only services are to be understood as commercial activity .

Requirements for working over to Austria

The EEA or Swiss entrepreneur must prove that he is authorized to exercise the activity in his country of establishment and that the activities involved are regulated trades:

  • provides proof of qualification according to the Austrian trade regulations and
  • Submit a written notification to the Federal Minister of Labor and Economics at least one month before the first commencement of work .

EEA entrepreneurs do not need to provide evidence of domestic qualifications or the recognition of foreign professional experience by the BMWA or the determination of individual qualifications if they can prove that the activity is also regulated in their home country. If this is not the case, proof must be provided that regulated training has been completed or that the activity has been carried out for at least 2 years within the last 10 years.

Entrepreneurs based in or citizenship of a third country

The following rules apply to entrepreneurs with their registered office or citizenship in a third country :

  • Entrepreneurs from a third country that is a member of the Agreement on the Establishment of the World Trade Organization : These are currently only authorized to initiate business, but are not allowed to carry out any sales or service activities in Austria.
  • Action is only possible through a domestic branch of a legal person or an Austrian subsidiary; only key workers may be employed there.
  • Entrepreneurs from third countries that are not member of the World Trade Organization require equality with the decision of the governor with nationality or companies of a WTO member state with the restrictions applicable to them.

Business activity by foreigners based in Austria

The exercise of a trade is only possible for natural persons if

  • there is a state treaty granting Austrians the same rights in the foreigner's country of origin or
  • legal residence in Austria allows self- employed work , and
  • Austrian citizenship is not expressly specified for the exercise of the trade.

Foreign legal entities or registered partnerships must provide evidence of a branch registered in the commercial register.

Stateless persons as well as refugees recognized according to the Refugee Convention are only allowed to engage in business if they are legally permitted to stay in Austria to pursue gainful employment. The same applies to asylum seekers and foreign students.

Citizens of EU / EEA signatory states enjoy the freedom of visa and establishment and are allowed to register and practice businesses like Austrians. The latter also applies to Swiss citizens.

Recognition of training certificates

Due to the different access to the profession in the EU / EEA signatory states, the following recognition of training certificates in accordance with the EC guidelines has been specified in the trade regulations in order to avoid discrimination:

  • Recognition of professional experience and training acquired in another contracting state in accordance with the EEA Recognition Regulation
  • Equal the professional qualification acquired in another contracting state with the respective Austrian qualification as a supplement to the recognition rules or for professions not covered by the recognition ordinance.

Ends of trade license

A business license can

  • go out,
  • put aside by the owner,
  • suspended at the owner's request or
  • be withdrawn after a procedure by the trade authority.

Commercial environmental law

To protect neighbors from smell, noise, smoke, dust or vibrations and to avoid adverse effects on the quality of the water bodies, §§ 74 ff. In conjunction with §§ 353 ff. GewO 1994 contain various operator obligations and provisions on the licensing procedure for commercial Operating facilities. Commercial plant law is one of the most important plant-related environmental laws in Austria.

literature

  • Christian Graf, Marian Paschke u. Rolf Stober (Ed.): Trade law in transition. Possibilities and limits of a new regulation. Proceedings of the sixth Hamburg Business Law Day on 16./17. June 2003. With an article on the reform of trade law in Austria by Harald Stolzlechner
  • Hermann Grabler, Harald Stolzlechner, Harald Wendl: Commentary on Gewo: Trade Regulations 1994 in the version of the trade law amendment 2002 including important EU directives and implementing regulations Springer Verlag Vienna, 2003, ISBN 3211838686

Web links

Individual evidence

  1. ↑ http://alex.onb.ac.at/Gewerbeordnung idF RGBl. No. 227/1859
  2. ↑ http://alex.onb.ac.at/Gewerbeordnung idF RGBl. No. 39/1883
  3. ↑ http://alex.onb.ac.at/Gewerbeordnung idF RGBl. No. 26/1907
  4. ↑ http://alex.onb.ac.at/Gewerbeordnung idF BGBl. No. 322/1934
  5. ↑ a b c d e Which businesses are there? Independent trades, regulated trades, partial trades, wko.at → Commercial law and trade law. Status: December 3, 2014, accessed March 3, 2015.
  6. ^ BMWFW: List of regulated trades . Status § 94 of the trade regulations 1994 as amended (pdf, bmwfw.gv.at).
  7. ↑ § 13 GewO 1994. (PDF) Retrieved on December 18, 2009 .
  8. ↑ Usurious prices: 110 advertisements against installer orf.at, February 16, 2017, accessed February 16, 2017.
  9. ↑ Commercial environmental law ( Memento of the original from March 28, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Website of the Federal Ministry for Science, Research and Economy , accessed on March 29, 2017 @1@ 2Template: Webachiv / IABot / www.bmwfw.gv.at