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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).
1. To implement Council Regulation (EC) No. 2157/2001 on the Statute for a European company (the ‘Regulation’) and transpose Council Directive 2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees (the ‘Directive’), both of 8 October 2001, the Austrian legislature passed the Gesellschaftsrechtsänderungsgesetz 2004–GesRÄG 2004, which includes the Act on the statute for a European company (Societas Europaeaor ‘SE’) (the SE Gesetz or ‘SEG’). The SEG entered into force on 8 October 2004 and amends various other federal laws such as the Commercial Registry Act(Firmenbuchgesetz or ‘FBG’) and the Public Limited-Liability Companies Act (Aktiengesetz or ‘Akt’) in order to accommodate this new legal entity. In transposing the Directive, the legislature also added a sixth chapter to the Labour Constitution Act (Arbeitsverfassungsgesetz or ‘ ArbVG’) (see nos. 54–81 of this report).
Reasons to opt for an SE
1. The SE has certain advantages over national corporate forms in Austria. International joint-venture vehicles and multinationals in particular may appreciate the possibility to form an SE with companies from different Member States and the relative ease with which an SE's registered office may be transferred from one Member State to another. Moreover, the introduction of a one-tier management system could also help to promote the establishment of new corporate organisational schemes in Austria. Furthermore, since the abbreviation ‘SE’ may only be used by companies that take the form of a Societas Europaea, the SE could be used as a marketing tool by companies with pan-European operations. Considering the reduction of the corporate tax rate from 34% to 25%, effective 1 January 2005, and the introduction of an advantageous group taxation model, Austria is prepared to enter the competitive fray as the business location of choice for SEs.
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