Notariatsakt und materielle Prüfpflicht des Firmenbuchgerichts auf dem Prüfstand (Notarial Deed and Substantive Duty of Review of the Commercial Register Court under Scrutiny)

Abstract

The current reform plans of Austrian corporate law focus inter alia on the formation of companies. The most controversial area seems to be the question of the notarial form requirement. Under the current law, a notarial deed is mandatory for the validity of the articles of association, which is intended to secure compliance with legal requirements before their submission to the companies’ registry; also, the form requirement aims at warning parties about the risks involved and the reduction of later disputes. Unsurprisingly, the Austrian notaries have lobbied heavily for the retention of this form requirement. Currently, however, under Austrian law the articles of association are also subject to a full and substantive review by the Court in its function as the companies’ registry – which comes in addition to the notarial form requirement. The need for such a duplication of reviews has been discussed controversially. Whether the additional review by the Court can be justified depends on the frequency and type of errors in current applications - until now, empirical figures have been lacking. This article provides a first empirical analysis, based on a sample of instructions issued by the Regional Court for Civil Matters Graz (acting as the Companies Registry). The results justify the additional full review by the Court and outline the need for improvement in the earlier review performed by the notaries.

Note: Downloadable document is in German.

Keywords: corporation, Austrian law, partnership, LLP, LLC, legal capital, capital maintenance, firm formation, notarization, Companies Register, substantive examination, duplication of the legal protection, minimum capital, public limited company, private limited company, start-up, employee share plans