In Austria there are a number of legal forms to choose from when starting a company:
- sole proprietorship
- limited liability company (GmbH)
- joint stock corporation (AG)
- societas Europaea (SE)
- public or private foundations (Öffentliche Stiftung or Private Stiftung)
- general partnership (Offene Gesellschaft)
- limited partnership (Kommanditgesellschaft)
- partnership under civil law (Gesellschaft Bürgerlichen Rechts)
Sole proprietor (Einzelunternehmer)
Sole proprietors have unlimited personal liability for all of their company’s debts and obligations, providing coverage with their business assets as well as personal property.
The law does not require any specific starting capital.
In Austria, the legal forms are: joint stock corporation (AG), private company with limited liability (GmbH) or a European company (societas Europaea – SE).
The legal forms typically share a number of characteristics:
The company itself is a legal entity and has its own legal identity. Proprietors are not personally liable for their company’s debts and obligations. Their liability is limited to the amount of their capital contribution. The law requires some starting capital and the amount in starting capital required depends on the legal form of the entity. Once entered on the commercial register (known as the Firmenbuch), a corporation comes into legal existence.
Limited liability company (GmbH - LLC)
In Austria the most popular corporation is the limited liability company known by its abbreviation GmbH. Proprietors can be individuals as well as legal entities. A GmbH can also be established by only one shareholder. Each shareholder is obliged to invest capital in the company. The designation Gesellschaft mit beschränkter Haftung or GmbH has to be added at the end of the company name.
A limited liability company’s share capital amounts to € 35,000. At the time of incorporation, half of this amount or € 17,500.00 needs to have been paid in. Newly set up companies have the option of limiting share capital under a privilege for start-ups. In that case, only €10,000 need to be paid for the first ten years.
Joint stock corporation (AG)
A joint stock corporation is known as an Aktiengesellschaft (AG) and can be established either by natural or legal persons. The designation Aktiengesellschaft or AG must be added at the end of the company name. This legal form is typical for larger business companies.
The corporate bodies of joint stock corporation are the general meeting of shareholders (Hauptversammlung), the supervisory board (Aufsichtsrat) which needs to consist of at least three people and the board of directors (Vorstand). The shareholders get to elect the supervisory board, and the supervisory board gets to appoint the board of directors.
Setting up a joint stock corporation requires capital stock in the amount of €70,000. As opposed to the limited liability company, the capital stock of an AG is split into shares. Like the limited liability company, the joint stock corporation has to be entered on the commercial register. At least 25 percent of the stock capital must have been paid at the time of registration.
European company (SE)
The European company (societas Europaea, SE) is based on European law. The advantage of this legal form is that the same law applies to it across Europe. A European company is formed by reorganising an existing company, for instance by way of a merger or by converting an AG. This explains why start-ups are usually not set up as an SE. The SE must have capital stock of at least €120,000.
There are two types of foundations: public foundations (e.g., a charity) and private foundations. Foundations need to be entered on the commercial register. They operate as holding companies and do not perform any trade or commercial activity themselves.
A private foundation must have assets of at least €70,000. Unlike other types of corporations, the private foundation does not have a proprietor. The foundation itself owns the assets.
Partnerships include the general partnership (Offene Gesellschaft), limited partnership (Kommanditgesellschaft), partnership under civil law (Gesellschaft Bürgerlichen Rechts)
Characteristics they share:
All partnerships have in common that they must have at least one partner with unlimited liability. There are no formal requirements for a partnership.
In this case too, the designation of the legal form (i.e.: offene Handelsgesellschaft or OG, Kommanditgesellschaft or KG), has to be added after the company name.
General partnerships (Offene Handelsgesellschaft, OG)
To set up a general partnership, two or more natural or legal persons are needed. They must assume personally liability for their company’s debts and obligations. In other words, the proprietors are not only liable with their business assets but also with their personal assets.
No minimum capital stock is required. The proprietors are not required to contribute any cash. Any of the proprietors can take on the management of the business.
Partnerships are legalised once they are entered on the commercial register.
Limited partnerships (Kommanditgesellschaft, KG)
The structure of a limited partnership (Kommanditgesellschaft or KG) is similar to that of a general partnership (OG). It also need to be entered on the commercial register.
The main difference is that general partners (Komplementär) have unlimited liability while limited partners (Kommanditist) are liable only for the amount of their liability deposit. The personally liable partner can also be an entity, usually a GmbH, which is then called a GmbH & Co KG.
Partnership under civil law (Gesellschaft Bürgerlichen Rechts)
A partnership under civil law does not have its own legal identity. Therefore, it cannot be entered on the commercial register. It is not a company in its own right. All the partners must meet the requirements set forth by industrial law and all of them have unlimited liability. This form is usually set up for short-term projects.