AUSTRIA Trends and Developments Contributed by: Markus Fellner, Florian Kranebitter, Elisabeth Fischer-Schwarz and Florian Henöckl, Fellner Wratzfeld & Partners
Director’s duty to request the opening of insolvency proceedings The director must file for the opening of insolvency proceedings no later than three months after they have become aware ‒ or may reasonably be presumed to have become aware ‒ of the legal entity’s insolvency (Article 36 of the proposed EU Directive). In the event of failure to comply with the obligation to file for insol - vency, the management shall be civilly liable for the damage caused to creditors by a late filing (Article 37 paragraph 1 of the proposed EU Directive). Austrian law already provides in Section 69 paragraph 2 of the Austrian Insolvency Act for an immediate insolvency filing obligation or, if serious restructuring efforts are pursued, an obligation to file for insolvency within 60 days. Winding-up of insolvent micro-enterprises Finally, a simplified insolvency procedure for micro- enterprises is to be installed. Micro-enterprises are qualified as enterprises that employ fewer than ten people and whose annual turnover or balance sheet total does not exceed EUR2 million.
Disqualification of managing directors On 14 June 2017, Directive (EU) 2017/1132 relating to certain aspects of company law was confirmed. This led to significant changes regarding the disqualifica - tion of managing directors. The Digitalisation Act under Company Law 2023 intro - duced a new exclusion regime for managing direc - tors, which has been in force since 1 January 2024 for criminal offences committed after this date ( Rück- wirkungsverbot ). A managing director may not be a person who has been sentenced by court to more than six months’ imprisonment, provided that the conviction was based on selected criminal offences related to the management of the company (eg, fraud, fraudulent crida, money laundering and many more); it is irrelevant whether the sentence was conditionally remissioned or unconditional. This legal consequence also applies to such a conviction for a comparable criminal offence by a foreign court. The legal consequence of disqualification can be con - ditionally remissoned and is also applicable to con - tributors. The disqualification ends three years after the conviction becomes legally enforceable.
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