Company Law Digitisation Act 2022 – Eases and Reliefs
The Company Law Digitisation Act 2022 (GesDigG 2022) entered into force on 1 December 2022 with the objective of providing for certain simplifications for new companies and the publication of annual financial statements as well as a reduction in company register fees.
Austria has thus complied with Directive (EU) 2019/1151 of 20 June 2019 amending Directive (EU) 2017/1132 with regard to the use of digital tools and procedures in company law (Digitisation Directive) and has hereby legally implemented the outstanding provisions of the Directive.
The central concern of the Digitisation Directive is to enable the following actions and measures to be carried out completely online and thus to provide for simplifications concerning:
- the formation of (capital) companies,
- the registration of branches of such companies in other Member States, and
- the subsequent submission of documents and information to the respective national business register (company register).
The previous Austrian legal situation already complied with the Digitisation Directive in many respects (e.g. possibility to form a GmbH online, online submissions to the company register via ERV), but the GesDigG 2022 has now introduced further regulations and simplifications. Reductions or complete abolition of company register fees have also been made.
Facilitations for foundations (initial registrations)
- The requirement of a domestic bank account when founding a GmbH is no longer applicable; the share capital can now be paid in at banks from all EU/EEA states. Alternatively – already since the Deregulation Act 2017 – the deposit can be made temporarily to a notary trust account.
- However, the options for digital GmbH formation already provided for since the “Simplified GmbH Formation Ordinance”, VGGV, Federal Law Gazette II No. 363/2017, have been left unchanged. Thus, currently only a natural person can establish a one-person GmbH, provided that the founding shareholder is also the sole managing director, without the involvement of a notary via the company service portal (USP) by means of an E-ID or citizen card.
- For service reasons, a sample of a declaration of incorporation (single-member limited liability company) or articles of association (multi-member limited liability company), including the FB application and English translations, has recently been made available on justiz.gv.at: https://www.justiz.gv.at/service/datenbanken/firmenbuch/muster-gmbh-gruendung-samt-firmenbuchantrag.aa8.de.html. However, it is still recommended to consult a professional in legal matters (notary, lawyer).
- For new registrations of companies and domestic branches of foreign companies (except in the case of reorganisations), a period of 5 working days is now provided for; if this is not possible, the Commercial Register Court must inform the applicant of the reasons for the delay in registration.
- Company register registrations of sole proprietors can be made entirely online and without notarial certification using the electronic proof of identity (E-ID) or the citizen card.
- According to the Digitisation Directive, the fees charged for online registrations may not exceed cost recovery, which means that the fees for the company register have also been reduced. In future, registration fees will be waived entirely for:
– Disclosure of the annual financial statement / consolidated financial statement
– Entries concerning managing directors
– Entries concerning shareholders
- All entries in the Company Register – with the exception of those for sole proprietorships and partnerships – will be automatically published in the Edict file and in the Official Gazette of the Wiener Zeitung.
- Company register query: In accordance with the Digitisation Directive, information on the company name, legal form, registered office, business address and authorised representatives can be queried free of charge at https://justizonline.gv.at/jop/web/firmenbuchabfrage and downloaded as a current partial extract free of charge.
- Exchange of information: The Business Registers Interconnection System (BRIS) is intended to facilitate access to information on European companies through a “European system of register interconnection” and to facilitate communication between all European commercial registers with regard to cross-border mergers and foreign branches. However, entries are not automatically taken over; for example, changes in the managing directors of the foreign company must still be registered separately for the Austrian branch – however, from now on the FB court will be informed via BRIS and can obtain the registration (under threat of coercive penalties).
Facilitation of the disclosure of annual and consolidated financial statements
- As of 1 July 2022, annual financial statements must generally be submitted in structured form (xml format) via FinanzOnline or Electronic Legal Transactions (ERV).
- For small GmbHs and small capitalistic partnerships (GmbH & Co KG), it is possible to prepare the xml file by manually entering the balance sheet data in an electronic form (https://justizonline.gv.at/jop/web/formulare/kategorie/2), but this can currently only be submitted via FinanzOnline.
- Only if the submission of the annual financial statements is not possible in a structured form (in xml format), the documents can still be submitted as a pdf attachment or via the ERV.
- The publication of annual financial statements of large joint-stock companies in the official gazette “Amtsblatt zur Wiener Zeitung” can now optionally also be requested via the Commercial Register Court, provided that an electronic version suitable for printing is also submitted; this provision also applies to consolidated financial statements to be published.
- In the case of branches of foreign corporations, annual financial statements of the main branch may be disclosed in English (“a language customary in international financial circles”) in addition to German. However, the filing shall only be required if the annual financial statements of the head office are not available for the commercial register via BRIS in German or “in a language customary in international financial circles”. However, it is not clear from the materials on the GesDigG 2022 whether other languages besides English are considered permissible.