AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
sions and demergers are possible, whereas a cross- border demerger for establishing a new corporation was not included. The Company Law Amendment Act 2023 With the Company Law Amendment Act 2023, the minimum share capital of limited liability companies was reduced from EUR35,000 to EUR10,000 as of 1 January 2024. This also made the privileged limited liability company formation obsolete. The Austrian Act on Flexible Capital Companies With the enactment of the Austrian Act on Flexible Capital Companies, a new legal form of corporation (the flexible company) specially oriented towards the needs of start-ups was introduced. This new com - pany form is a hybrid of a limited liability company and a stock corporation and also supports enabling employees to participate in the company’s success by offering them equity interests (company value shares). For flexible companies, the acquisition of their own shares is permissible, up to a maximum of one-third of the share capital. Furthermore, flexible capital-raising measures are possible, such as contingent capital increases to grant subscription rights or share options to employees and authorised capital for the issuance of new shares. The Corporate Law Digitalisation Act 2023 The Corporate Law Digitalisation Act implemented Article 13i of the Company Law Digitisation Directive (Directive (EU) 2019/1151) and provides grounds for excluding a natural person from holding a position as managing director or a member of the management board. The new regulations entered into force on 1 January 2024 and affect: • limited liability companies;
lent insolvency practices, money laundering, etc). Disqualification from holding the position of man - aging director ends three years after the conviction becomes legally binding. Ongoing efforts to regulate killer acquisitions Despite the ECJ’s Illumina/Grail ruling, the European Commission remains committed to addressing killer acquisitions, where dominant companies acquire innovative start-ups to eliminate future competition. The Commission is now exploring alternative regu - latory measures, including potential amendments to the EU Merger Regulation or revised guidelines for assessing merger control referrals. It remains to be seen whether legislative changes will be introduced to close the regulatory gap highlighted by the Illumina/ Grail case. 3.2 Significant Changes to Takeover Law The Austrian Takeover Act, which entered into force in 2018, has been amended to include a new section regulating offers to delist securities from the Official Market of the Vienna Stock Exchange. Delisting offers are subject to the provisions govern - ing mandatory offers in accordance with the deroga - tions set out in the new Section 27e of the Takeover Act. Offer documentation must expressly indicate that the offer is a delisting offer. The delisting offer can be combined with a voluntary takeover offer to acquire a controlling interest or with a mandatory takeover offer. The consideration offered under the delisting offer will be subject to two additional price floors. The consid - eration has to reach at least the following: • the weighted average market price during the last five trading days prior to the day on which the intention to submit the delisting offer is announced; and • if the weighted-average market price is obviously lower than the company’s actual value, the price must be set reasonably. For the changes resulting from the ECJ ruling, see 3.1 Significant Court Decisions or Legal Developments .
• flexible companies; • stock corporations; • Societas Europaea; and • co-operatives.
As a result, a managing director (member of the man - agement board, director, etc) may not have been convicted by a (domestic or foreign) court of certain white-collar crimes (ie, fraud, embezzlement, fraudu -
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