Corporate & Company Law

That depends on liability, capital requirements, the shareholder group, tax burden and planned growth. In Austria the GmbH is the standard vehicle for entrepreneurial activity with limited liability; the OG and KG are partnership-based and possible without minimum capital; the FlexKapG (FlexCo), introduced in 2024, is aimed primarily at start-ups with employee participation; the AG is an option for larger structures with proximity to the capital markets. We review the options together with your tax adviser so that the legal and the tax perspective align.

Since 1 January 2024 the minimum share capital of a GmbH has been EUR 10,000, at least half of which must be paid in cash. The previously available founding-privileged GmbH has consequently been abolished. For existing companies, an amendment of the articles of association may be advisable – we assess whether this creates a need for action in your case.

A managing director owes the company the diligence of a prudent businessperson (§ 25 GmbHG). Personal liability – meaning the managing director answers with his or her private assets – arises above all from a breach of this duty of care, from filing for insolvency too late, from unpaid taxes and social security contributions, and from breaches of the rules on capital maintenance. A clear allocation of responsibilities, documented decisions and suitable D&O insurance noticeably reduce the risk.

The articles of association are publicly available in the Austrian companies register (Firmenbuch) and set out the basic constitution of the company. A supplementary shareholders' agreement (syndicate agreement) remains confidential and can cover matters that have no place there: voting arrangements, pre-emption and tag-along rights, non-compete undertakings, succession and exit scenarios, and rules for the event of conflict. It is precisely such precautionary clauses that prevent costly disputes later on.

Succession touches company law, inheritance law and tax law at the same time. Points to clarify include the transferability of shares under the articles of association, call-option and settlement provisions, financial protection for the person handing over the business, the employment law consequences of a transfer of the undertaking, and alignment with the will and the compulsory portion. We recommend setting up the process several years before the intended handover.

Since 1 December 2024, a natural person who states that they intend to transfer a business, a part of a business or a partnership interest within the meaning of § 24 EStG 1988 (Income Tax Act) to family members within two years can apply for accompanied support of the business transfer (§§ 153h ff BAO (Federal Fiscal Code), introduced by the Grace Period Act, BGBl. I No 56/2024). During the accompaniment there is ongoing contact with the Austrian tax office and an increased duty of disclosure; in return, once it has ended, the businesses covered are exempt from an external tax audit for the periods covered. For a partnership interest this applies only if the partnership consists exclusively of family members. Whether an application is worthwhile depends on the individual case – we assess this together with your tax advisers.

Yes. The single-member GmbH is permissible and common: one shareholder, who can also be the managing director, establishes the company by notarial deed; under certain conditions the simplified electronic formation is available as well. Points to consider are the issue of self-dealing in transactions with yourself, social insurance as a managing shareholder, and whether a GmbH is actually the better choice compared with a sole proprietorship in tax and organisational terms – we work that out together with your tax advisers.

Beyond the mandatory content, above all provision for the situations nobody wants to think about at formation: transfer restrictions and call options for when a shareholder wants or has to sell; a valuation clause that makes the settlement price calculable; tag-along rights and obligations; rules for deadlock situations and for removing managing directors; non-compete undertakings; and a procedure for the event of a dispute. Without this, the default statutory provisions apply – and these almost never fit the actual circle of shareholders.

Shares in a GmbH are inheritable – without contractual provision, the heirs suddenly find themselves in the company, possibly a community of heirs with no knowledge of the industry. The articles of association can steer this: with call options for the remaining shareholders against a settlement payment, succession clauses in favour of specific persons, and valuation rules. What matters is alignment with the will and the compulsory portion – the articles of association and the will must not contradict each other. In practice, this alignment is what is missing most often.

There is no general statutory right of withdrawal – the route is the sale of the share, which requires a notarial deed and is often tied by transfer restrictions to the consent of the co-shareholders. Beyond that, the call and termination rights provided for in the agreement come into consideration, and in exceptional cases withdrawal or exclusion for good cause through the courts. How smoothly the exit runs is decided almost always by what was agreed at formation – or was not.

The transfer of a GmbH share among the living mandatorily requires a notarial deed (§ 76 para 2 GmbHG); the same applies to any agreement obliging a shareholder to a future transfer. Whether the other shareholders must consent is determined by the articles of association: they can make the transfer subject to further conditions, in particular the consent of the company (a transfer restriction known as Vinkulierung) – in practice this is the rule. In addition, call options and pre-emption rights often have to be observed before a sale to a third party. We clarify the tax side of the sale from the outset, together with your tax advisers.

If the articles of association make no provision, the only option is an action for exclusion for good cause – a lengthy route with high requirements for reasoning and evidence. Robust articles of association therefore set out call options together with trigger events such as insolvency, death, serious breach of duty or loss of a professional licence, plus a valuation procedure and the payment terms. Anyone who only negotiates these points once conflict has broken out negotiates from the weaker position.

Where two shareholders each hold 50 per cent, any contested question blocks the shareholders' meeting – without provision, a 50:50 shareholder dispute can paralyse the entire company. Prevention lies in the articles of association or a shareholders' agreement: casting votes or an advisory board for defined questions, staged dispute resolution including mediation and, as the final stage, separation clauses with an orderly valuation and buy-out procedure. If no such provision exists, we first seek a negotiated solution within the company's own bodies and, where necessary, represent your interests in court – in a way that keeps the business running as far as possible.

The standard route is dissolution by a shareholders' resolution, which must be notarially recorded (§ 84 para 1 no 2 GmbHG). The dissolution is entered in the companies register; liquidation follows (§§ 89 ff GmbHG). As a rule the previous managing directors act as liquidators: they wind up the current business, realise the assets and publicly call on the creditors to come forward. The assets then remaining may be distributed to the shareholders no earlier than three months after publication of this call to creditors (§ 91 para 3 GmbHG). Once the liquidation is complete, the company is deleted from the companies register. Before resolving on dissolution, it is worth considering alternatives such as a sale or a reorganisation.

A medical practice cannot legally be bought as a whole: under § 3 ÄrzteG (Physicians Act) the licence to practise attaches to the person, and the contract with the public health insurer does not transfer – the panel position is advertised by the Austrian Health Insurance Fund (ÖGK) in agreement with the Medical Chamber and awarded under the ranking guidelines. What is transferred are the equipment, the premises, the employment relationships and the goodwill. The purchase agreement should therefore be made conditional on the individual contract with the ÖGK coming into existence. Separate provisions are also needed for the patient records (confidentiality, consent, ten-year retention obligation) and – often decisive for the value of rural practices – the dispensary licence, which likewise does not transfer automatically.

In a transitional practice, the departing panel doctor and the intended successor run the practice together for a limited period so that the patient base is preserved. It is regulated not in the Physicians Act but in the general contract with the health insurer – for Salzburg, in § 5 of the general contract of the Salzburg Medical Chamber. It must be requested, together with notice of termination of the individual contract, no earlier than three years and no later than one year before the contract ends; over the whole period the departing doctor must personally provide at least 50 per cent, and in every quarter at least 25 per cent, of the practice hours. Importantly, a private-law agreement on the practice takeover is expressly not a selection criterion – the transitional practice cannot be used to determine one's successor. The periods and percentages stated reflect the consolidated version of the general contract; as further supplementary agreements have since been concluded, the current position should be confirmed with the Salzburg Medical Chamber before concrete planning.