Austrian legislation offers various types of legal entity for companies or private persons to conduct their business.
Commonly used companies for doing business in Austria are:
- general partnership (Offene Gesellschaft)
- limited partnership (Kommanditgesellschaft)
- private limited liability company (Gesellschaft mit beschränkter Haftung, in short: GmbH)
- public limited liability company / joint stock company (Aktiengesellschaft)
The most suitable organisational form for a mid-sized enterprise in Austria is the GmbH, a limited liability company.
General remarks on the GmbH
A GmbH is an “incorporated entity” with a legal identity independent of that of its shareholders, and can be used for nearly all legal types of business (e.g. commerce and trade, industry, retail and wholesale). It may be formed by either one or several shareholders. Austrian citizenship or a domicile or place of residence in Austria are not requirements for becoming a shareholder. This means that any natural person or legal entity and all comparable foreign entities are eligible to become shareholders of a GmbH. The top-level constitutive body is the general meeting of shareholders, which adopts resolutions and is entitled to take action in all matters involving the company. A GmbH is represented by one or more managing directors appointed by the shareholders. The managing director does not have to be (but could be) a shareholder. Furthermore, it is not required that the managing director has his or her normal residence in Austria.
A GmbH must have nominal capital of at least EUR 35,000 when established. However, only half of this amount must generally be paid in cash into the company’s bank account (a contribution exclusively in kind is also possible, but has to be reviewed by a court-appointed auditor). Another option is to establish a “privileged GmbH”: shareholders are only liable for cash contributions totalling EUR 10,000 in the first ten years, and the shareholders are obliged to pay in at least EUR 5,000 of this amount in cash upon the company’s formation.
How to incorporate an Austrian limited liability company
Several formalities have to be met in order to set up a GmbH. “Articles of association” have to be drawn up between the shareholders, or “a declaration on the formation of a company” if the GmbH is formed by one single shareholder. The documents must be set out in the form of an Austrian notarial deed. A foreign investor may appoint an agent for the purposes of establishing a GmbH in Austria provided the agent holds a notarised power of attorney. For a singlemember GmbH (only one shareholder, who is also the managing director and must be a natural person) a simplified GmbH foundation process without an Austrian notarial deed is possible if the declaration on forming a company has standardised content and if the shareholder has a digital signature. Furthermore, a GmbH does not legally exist until it has been entered into the Commercial Register. To register the GmbH, bank confirmation has to be attached in which the bank declares that the cash contributions are paid into the company’s bank account.
Costs of setting up a GmbH
Besides the contracting costs, which depend on the size of the company and the contract (e.g. where a GmbH is established by one single shareholder, the declaration on the formation of a company, fulfilling the minimum criteria, will only cost between EUR 100 and EUR 200), court fees for entering the GmbH into the Commercial Register have to be paid too. The fees generally range from EUR 400 to EUR 500. It is possible to obtain exemption from the court fees if the Austrian Promotion of Start-Ups Act applies to the newly-formed business.
