In the course of implementing the "Digitalization Directive" (Directive 2019/1151/EU of 20 June 2019 - as amended: "Directive"), the Austrian legislator enacted the "Company Law Digitalization Act 2022" (GesDigG 2022) on 6 December 2022. The UGB, the FBG, the GmbHG, the AktG, the SpaltG, the GenG and the GGG were all amended.
The aim of the law is the digitalization of corporate law acts. For example, the formation of companies, the registration of branches in other Member States and the entry of documents in the commercial register are to be completely digitalized.
1. Amendments to the Austrian Commercial Code (UGB)
Section 10 (1) UGB has been reformulated so that documents and information are already published when they are made available in the companies register. According to the previous legal position, this was (only) fulfilled when the documents were announced or published in the Wiener Zeitung. The decisive point of registration is now the transfer of the data to the commercial register. An announcement in the Wiener Zeitung will continue for information purposes (see below for more details).
In recent months, there have been several media reports about the discontinuation of the Wiener Zeitung. In future, it will only be available online and will no longer be published in print. The Federal Act on Wiener Zeitung GmbH and the Establishment of an Electronic Federal Announcement and Information Platform - WZEVI Act (Federal Law Gazette I No. 46/2023) establishes the Electronic Federal Announcement and Information Platform (EVI for short) (§ 5 WZEVI Act). Pursuant to section 6 of the WZEVI Act, announcements must now be made on EVI.
Another new feature is that individual business owners and (registered) partnerships are also to be published in the edict file. The previous exception from publishing is no longer applicable, as no expenses are caused for the business owners due to the registration.
For individual business owners, certification is no longer required for registration in the commercial register (§ 11 para 3 UGB), if the registration is carried out with an electronic identity card (pursuant to §§ 4ff E-GovG). This also applies to sample drawings of business owners. However, the certification requirement for other authorized persons, such as authorized representatives, still exists.
2. Amendments to the GmbH Act
Shareholders of a corporation may now pay their capital contributions into an EEA bank account instead of exclusively into a domestic bank account as before (§ 10 GmbHG).
3. Amendments to the AktG, the Demerger Act and the GenG
The amendments to § 10 para 1 UGB required changes in the formulation of §§ 178, 226, and 243 AktG. Therefore, the entry in the commercial register is relevant for the beginning of the deadline for creditor protection and not, as before, the announcement in the edict file and the Wiener Zeitung. The same applies to §§ 15 Abs 2 SpaltG and §§33a Abs 1, 40 Abs 1 - 2 GenG, as well as to the distribution of liquidation proceeds (§81 GenG).
4. Changes in the annual accounts of large public limited companies
The new §277 para 2a UGB provides an option regarding the obligation to publish the annual financial report of large public limited companies. On the one hand, the publication in the Wiener Zeitung (now in the EVI) can be made by the company itself, as before, or it is required that the documents are forwarded to the Wiener Zeitung (now to the EVI) when they are submitted to the companies register (principle of "one-time registration").
5. Amendments to the FBG
According to §20a FBG, judges and judicial officers must in future decide within 5 calendar days on applications for the first registration of a legal entity or a branch office. If this is not done within the deadline, the applicant must be informed immediately and with sufficient justification. Exceptions are registrations in connection with reorganizations, as these are usually complicated matters.