What is the main source of law authorizing this entity form?

Austrian Commercial Code ("Unternehmensgesetzbuch - UGB") and (regarding the GmbH as general partner) the Austrian Act on Limited Liability Companies ("GmbH Gesetz").

Give a brief summary of the entity form:

Does the entity possess separate legal personality?

The GmbH & Co. KG has legal personality.

(Maximum) period of existence

No maximum period of existence; usually the GmbH & Co. KG is incorporated for an indefinite period, but a limited period may be included in the articles of association.

Governing document(s)

The GmbH & Co. KG is governed by its articles of association.

Liability of incorporators / shareholders

The GmbH as general partner ("Komplementär") has full liability (but its shareholders have not). The liability of the limited partner ("Kommanditisten") is limited to their registered amount of liability ("Haftsumme"), which they can freely define.

(Governing) bodies

The general partner is the legal representative of the limited partnership; since the only general partner is a GmbH, its managing director(s) in turn represent(s) the latter.

Other particularities

N/A

Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions, equity acquisitions, etc.)?

The acquisition of assets, equity, etc. abroad is possible without limitation.

International restructurings are possible pursuant to specific legislation (mergers within the EU) or pursuant to jurisdiction of the European Court of Justice (e.g. crossborder relocations with change of legal form).

Can this type of entity be publicly listed or held?

No.

Can this type of entity be used for a non-profit or charitable organization?

No.

Give a brief summary of the process of incorporation, formation, or organization, including:

Main documents required

Main documents are the:

• documents required for the incorporation of the GmbH as general partner (see the chapter regarding the GmbH);
• articles of association of the GmbH & Co. KG indicating the contributions of the limited partners (note: it is possible that the general partner holds 0% in the capital, its only contribution then is the assumption of the unlimited liability); and
• documents for the registration at the Austrian Commercial Register (" Firmenbuch").

Involvement of notary, company register, governmental authorities

No formal requirements regarding the execution of the articles of association; and

The GmbH & Co. KG must be registered with the Austrian Commercial Register ("Firmenbuch") – the filing needs to be notarially certified.

Timing (estimate)

Timing (estimate): incorporation takes between a few days and a few weeks, particularly depending on the complexity of the shareholder structure and the workload of the Commercial Register

Main costs, including registration and similar fees (excluding legal fees)

The main costs are the lawyers/notaries fees. The registration fee is about EUR 400. Costs for the foundation of the GmbH as limited partner to be taken into consideration.

Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?

The corporate objects / purpose are usually stated in the articles of association, although this is not mandatory.

Minimum number of incorporators / shareholders and residency requirements

Minimum of two partners/incorporators, at least one general partner (the GmbH) and one limited partner. The limited partners of the GmbH & Co. KG can at the same time be the shareholders of the GmbH.

No residency requirements.

Minimum number of directors (or other applicable officers) and residency requirements

The company is represented by its general partner (GmbH), and therefore by the GmbH’s managing director(s). Minimum one. No residency requirements.

Minimum share capital, or equivalent, and payment requirements (including opening a bank account)

No minimum share capital for the GmbH & Co. KG. Minimum share capital of the GmbH is EUR 35,000 (see the chapter regarding the GmbH).

Is the physical presence of incorporators / directors required in the jurisdiction for incorporation, formation or organization?

For the foundation of the GmbH as general partner see the chapter regarding the GmbH.

For the foundation of the GmbH & Co. KG no physical presence required.

Managing director(s) of the GmbH as general partner need to sign the registration application of the GmbH & Co. KG in notarially certified form, no representation possible. Legally it is possible that the managing directors sign abroad (in front of a foreign notary to certify the signature).

Is a tax identification number, or equivalent, required? If so, how is it obtained?

The tax identification number will be provided by tax authorities on registration. VAT-ID will be provided by tax authorities on request.

What is the title of the applicable company registry?

Commercial Register ("Firmenbuch").

What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.:

The following information must be filed at the Commercial Register and is publicly available:

• Name of the company.
• Legal form.
• Registered office and the business address relevant for deliveries.
• A short description of the branch of business.
• Effective date of annual financial statements.
• Articles of association.
• Name of the general partner (GmbH).
• Names of the limited partner(s) and their amounts of liability.
• Insolvency proceedings.
• Liquidation.

In addition, ultimate beneficial owners of Austrian legal entities (with some exceptions) must be registered with the Austrian UBO Register ("Register der wirtschaftlichen Eigentümer ") according to the provisions of the Austrian UBO Register Act ("Wirtschaftliche Eigentümer Register Gesetz – WiEReG"). Each company is obliged to identify and verify its ultimate beneficial owners and report the requested data to the register.

What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?

The general partner is the legal representative of the limited partnership; since the only general partner is a GmbH, its managing director in turn represents the latter.

How are the members of the executive body appointed, dismissed and replaced?

For the appointment and dismissal of the managing directors of the GmbH see the chapter regarding the GmbH.

Is it possible to appoint corporate directors or must all directors be natural persons?

All managing directors must be natural persons.

Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?

For the establishment of a supervisory board ("Aufsichtsrat") on GmbH level see the chapter regarding the GmbH. The GmbH & Co. KG itself cannot have a supervisory board.

What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?

The partners' meeting ("Gesellschafterversammlung") has all rights and responsibilities provided to it by law and the articles of association and which are not imposed upon the managing partner or other bodies within the company.

What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?

In general, resolutions are passed unanimously. The articles of association may provide for different majorities.

Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?

No.

What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?

Annual financial statements need to be set up by the managing partner and in case of mandatory audit requirements, audited. The financial statements must be filed with the Commercial Register ("Firmenbuch").

Is the entity permitted to determine its own financial year?

Yes, to be determined in the articles of association.

Is the entity subject to any statutory (external) auditor obligations?

Depending on the balance sheet total, turnover and number of employees.

Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?

In order to carry out a trade ("Gewerbe"), the company needs to appoint a manager pursuant to trade law ("Gewerberechtlicher Geschäftsführer"). The manager is responsible for ensuring compliance with the applicable trade law provisions as well as the proper professional conduct of business.

Citizenship requirements for the manager: Austria, EEA signatory states, Switzerland, other third countries with residence permit.

Residency requirements: Austria, Switzerland or any EEA signatory state.

 

What is the title designated for 'ownership interests' (e.g. shares, quota, interests, membership)?

Capital interest.

Are different classes of ownership interests possible? If so, what are some examples of different classes?

Not legally regulated, but can be determined on a contractual basis (e.g. preferred shares, interest participation rights).

What documentation is required for the transfer of ownership interests?

No formal requirements. Written share transfer agreement recommended.

Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?

Approval by the partners' meeting might be stipulated in the articles of association.

Share transfer needs to be filed with the Commercial Register, however the registration is just for information purposes but has no impact on the legal effectiveness of the share transfer.

Are there any applicable stamp duties imposed when transferring ownership interests?

No.

How are shares issued? (including information on payment obligations, registration requirements)

No physical issuance required.

Further information on equity contributions, e.g., non-cash payments on shares, (share premium) contributions without issuances of shares, can partially paid shares/ownership interests be permitted and what are the restrictions on them?

Contributions in kind are possible.

Contributions into the reserves are possible without issuing capital interest.

Any requirements with respect to share cancellation, share repurchase and other capital reductions

Share cancellations and repurchases are not possible.

Capital reduction is possible by amendment of the articles of association (usually at the same time the registered liability coverage is reduced, this has to be filed with the Commercial Register).

Any requirements with respect to distributions to shareholders?

In principal, each shareholder is entitled to receive respective balance sheet profits, if any. However, limited partners are only entitled to profit distributions if they have rendered their entire (cash or in-kind) contributions.

Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?

Yes.

Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?

Main costs arise for the preparation of the annual financial statements. Costs for filings are negligible.

What are the general corporate tax rates? (Specify if there is a national versus local distinction).

No corporate taxes. Partners are taxed personally ("tax-transparent company"). Therefore, profits and losses are effective for the partners.

Summary of any specific matters, e.g. recent or prospective major legal developments

No major corporate law changes expected in the near or middle future.