Austrian company law is characterized by the fact that only those company forms are permitted that are "typified" by law. Unlike general contract law (in which there can also be contract types that are not provided for by law; a classic example is the "leasing contract"), the law therefore specifies which company forms are permitted and - although here modifications by the parties are also possible - how the legal relationships surrounding a specific company are structured.
The existing legal regulations (in particular) of the Austrian GmbH have been viewed in the past as being too narrow. The "driver" of a recent legal development was in particular the start-up scene, which has been criticizing the rigid corporate law system of the Austrian GmbH for years, both with regard to formal requirements and in particular with regard to capital measures.
Against this background, the Austrian legislator has created a third corporation through the Company Law Amendment Act 2023 (Federal Law Gazette I No. 179/2023), the flexible corporation (or "FlexCo" for short). In principle, this company is very similar to the existing GmbH, so the GmbHG also applies subsidiarily.
Just like the GmbH, the FlexCo is only created when it is entered in the commercial register, so issues such as the pre-company or the pre-foundation company can also arise. As a rule, a notarial act is required for the establishment (Section 4 Paragraph 3 GmbHG), even in the case of divisions or mergers, the notarial act remains and the amendment of the partnership agreement itself also requires this special form.
A number of points are regulated differently at FlexCo:
For example, a transfer of shares by means of a deed in accordance with Section 12 of the FlexKapGG, drawn up by/before a lawyer or notary, is sufficient. A notarial deed is not required. Furthermore, there is the possibility of (at least) two different share classes, namely regular shares (with voting rights, etc.) and so-called company value shares (“UWAs”). Inconsistent voting is permitted, and a GmbH can easily be converted into a FlexCo (Section 25 of the FlexKapGG). The company value shares enable the participation of (in particular) employees, whereby the share of such UWAs must not reach 25% of the share capital, i.e. must be less than this. In principle, such shareholders have the same rights as shareholders (in particular, they have a right to profits and liquidation proceeds) and are also entitled to information and inspection rights, but of course no voting rights and therefore no right to contest resolutions.
Capital measures at FlexCo have also been made more flexible. The acquisition of own shares is generally permitted under certain conditions, and the law also provides for a conditional capital increase. In addition, it is possible to increase the share capital by issuing new shares against a contribution (following the rules for ordinary capital increases) using authorized capital.
The downside is that even a medium-sized FlexCo is subject to the supervisory board requirement (Section 6 FlexKapGG). Apart from that, however, the FlexCo has a number of advantages over the GmbH, so it can be assumed that this legal form (in the sense of a "competition of legal forms") will gain ground in the future. It is also to be expected that there will then be a certain backlash effect on the regulations of the GmbHG, i.e. that regulations that are popular with those subject to the norm and prove to be practical will be transferred from the FlexKapGG to the GmbHG.
20.06.2024