1. Which law is applicable to the legal capacity and right of representation of a legal entity?
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In Austria the IPRG (Federal law on international private law) is applicable for the right of representation of a legal entity. According to paragraph 12 of the IPRG the legal capacity of a legal entity depends on the personal statute. The law applicable to a legal entity is the law of the country where the company has its seat (paragraph 10 of the IPRG).
The law for Limited Liability Companies in Austria is regulated in the GmbH-Gesetz.
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10001720
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The law for Limited Liability Companies in Austria is regulated in the GmbH-Gesetz.
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10001720
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2. What criteria/rules are used to determine the applicable law (for example the law of incorporation or the actual seat)?
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The Austrian IPRG determines that the applicable law is the law of the place where the company has its actual seat.
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3. Which international conventions have to be respected?
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The only international convention is the EU Merger Directive 2005/56/EG. All the other laws are national Austrian regulations.
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4. Are there international conventions with regard to certain countries?
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There are no international conventions with regard to certain countries.
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5. Are all companies registered in a public register? What are the effects of registration? (please add a link to the register, if possible)
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All capital companies, open societies and limited partnerships must be registered in the public register. Individual companies must be registered if they achieve more than EUR 700,000 in sales in the financial year. Otherwise, individual companies and civil-law-partnerships can register on a voluntary basis.
Some entries in the public register are constitutive, which means that the right or the legal relationship only arises with the entry in the public register. For example, a limited liability company, a joint-stock company, an open society or a limited partnership come into legal being upon their registration in the public register. Other entries into the public register are only declarative, such as the appointment of a managing director of an existing limited liability company.
https://dienste.jusline.at/CommercialRegisterAustria/Companies
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Some entries in the public register are constitutive, which means that the right or the legal relationship only arises with the entry in the public register. For example, a limited liability company, a joint-stock company, an open society or a limited partnership come into legal being upon their registration in the public register. Other entries into the public register are only declarative, such as the appointment of a managing director of an existing limited liability company.
https://dienste.jusline.at/CommercialRegisterAustria/Companies
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6. Does a foreign company have to be registered in your public company register?
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In Austria companies need to be registered in the public register when they have a headquarter in Austria. Foreign companies only need to be registered if they have a branch in Austria.
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7. Who has the legal right of representation of a legal entity?
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In Austria a company is represented by its managing directors.
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8. Must the right of representation be registered (if yes, please add a link to the register, if possible)?
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A managing director is appointed by a shareholder resolution and must be registered in the public register.
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9. If the right of representation must be registered, what legal effect does the registration have with respect to third parties?
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The appointment as a managing director is valid with the shareholder resolution. The registration in the public register only has a declarative effect, the order is effective regardless of the entry in the register. Third parties can trust that the registration in the public register is correct.
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10. May the rights of the legal representative be restricted? If yes, please explain how (e.g. by laws or the articles of association)?
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The right of a managing director can be restricted by a shareholder resolution, through an agreement in the act of association or by a binding order by the supervisory board.
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11. Does that restriction have any legal effect towards third persons?
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The restriction of the power of a managing director has no legal effects on third parties.
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12. How can the representative prove the right of representation (e.g. extract in paper from the registry certified by some authorities, extract from public registry)?
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The representative can prove the right of representation through an extract in paper from the public register or through the official confirmation of a notary.
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13. Are there any circumstances where the transactions entered into by the legal representative of a company are considered not binding on the company (e.g. for a valid transaction should there be a decision or consent of the shareholders, supervisory body)? If yes, please explain.
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The limitation of the power of representation has no effects on third parties. The limited liability company is bound by legal transactions that a managing director has concluded in excess of a restriction. The limited liability company is not bound only if the business partner knows about the restriction.
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14. Is it possible to verify the right of representation by digital means from the register? Please indicate the source and in which language the inquiries should be conducted.
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Anyone can have an excerpt from the companies' public register after paying a fee on the internet. It´s also possible to get an excerpt at a notary office after paying a fee.
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15. When anti-money laundering measures are applied, how are the beneficial owners of a legal entity registered in your country identified? Would there be different possibilities for professionals from other countries to identify the beneficial owners? Please indicate the source and in which language the inquiries should be conducted.
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The owners of a legal entity are registered in the public register. By viewing the electronic company public register, it´s possible to know the owners of a legal entity. The owners are identified by an official identity document with a photograph. There are no other possibilities for professionals from other countries to identify the beneficial owners.
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