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The Second Company Law Directive was originally implemented into Austrian law by various acts, most importantly (i) the Act on Accounting (Rechnungslegungsgesetz) of 31 July 1990, (ii) the Amendment Act of 11 January 1991 regarding, among others, the Act on the Commercial Register (Firmenbuchgesetz), the Commercial Code (Handelsgesetzbuch), the Stock Corporation Act (Aktiengesetz) and the Act on Private Limited Liability Companies (Gesetz über Gesellschaften mit beschränkter Haftung) and (iii) the Corporate Law Amendment Act of 28 June 1996 (EU-Gesellschaftsrechtsänderungsgesetz 1996). The latter implemented the amendments to the Directive introduced by Directive 92/101/EEC while those introduced by Directive 2006/68/EC were implemented together with Directive 2005/56/EC by the Corporate Law Amendment Act of 24 October 2007 (Gesellschaftsrechts-Änderungsgesetz 2007). The latest amendments to the Second Company Law Directive introduced by Directive 2009/109/EC were transposed into Austrian law by the Corporate Law Amendment Act of 27 July 2011 (Gesellschaftsrechts-Änderungsgesetz 2011).
The scope of the Second Company Law Directive is limited to public limited liability companies (see no 1 of Chapter 1). In accordance with the Directive, the stock corporation (Aktiengesellschaft) is the public limited liability company under Austrian law to which the Directive applies (Art. 1(1) Dir.). Although certain rules of the Directive have been extended under Austrian law to private limited liability companies (Gesellschaft mit beschränkter Haftung), this chapter generally focuses on stock corporations, while addressing private limited liability companies only occasionally where deemed relevant.
1. The Cross-border Merger Directive has been implemented in Austria by the Corporate Law Amendment Act 2007 (Gesellschaftsrechts-Änderungsgesetz 2007). This Act has introduced the EU Merger Act (EU-Verschmelzungsgesetz, short name: EU-VerschG) – a new Act which supplements the provisions on domestic mergers provided for in the Limited Liability Companies Act (Gesetz über Gesellschaften mit beschränkter Haftung, short name: GmbH-Gesetz) and the Stock Corporation Act (Aktiengesetz). The EU Merger Act provides that the provisions applicable to domestic mergers shall apply also to crossborder mergers unless provided for otherwise in the EU Merger Act. Therefore, basically the Stock Corporation Act, the Limited Liability Companies Act (in case a limited liability company is involved) and the EU Merger Act form the Austrian statutory framework applicable to cross-border mergers.
The EU Merger Act became effective on 15 December 2007; Austria therefore has met the deadline for transposition provided for in Article 19 of the Cross-border Merger Directive.
Scope of the new rules
2. The EU Merger Act applies expressly to Austrian stock corporations (Aktiengesellschaften) and Austrian limited liability companies (Gesellschaften mit beschränkter Haftung). Although not expressly provided for by the EU Merger Act, the new rules on cross-border mergers also apply to existing European companies (SEs). The EU Merger Act does not apply to the formation of a (new) SE by means of a merger (see Chapter 1, no 9 of this book).
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