What Happens When the Austrian Register Court Sends a Filing Back

Register proceedings are non-contentious proceedings. FBG § 15 Abs. 1 applies the general provisions of the Außerstreitgesetz to them except §§ 72 to 77, the procedure for varying a final decision, so there is no reopening route in register matters. Everything else follows from that.

1. The court investigates, it does not merely receive. AußStrG § 16 Abs. 1 makes the court clarify of its own motion every fact decisive for its decision, and take account of every indication of one. Abs. 2 makes the parties state all such facts completely and truthfully. An improvement order is that duty in action, not an obstruction.

2. It decides only what you asked for, and you must ask precisely. FBG § 16 Abs. 1 requires the application to designate the entry sought specifically, and AußStrG § 36 Abs. 4 binds the court, in a proceeding that can only be started on application, to the scope of the applications made. A vague request is not a smaller request. It is a defect.

3. Some checks it runs unasked. Since 1 January 2024 the court establishes by an automated criminal-record query whether a person filed as a managing director or board member is disqualified, and may ask other member states through the registers interconnection system (FBG § 19a Abs. 1 and Abs. 2, BGBl. I Nr. 178/2023).

4. It can stop and wait. Where the decision depends on a legal relationship being decided in other court or administrative proceedings, the court may stay its own until that is final (FBG § 19 Abs. 1), must refrain or lift the stay where the interest in a quick disposal substantially outweighs (Abs. 2), and a refusal to stay cannot be appealed (Abs. 3).

Seven different things can arrive from a Firmenbuch court and only two are decisions on your application. The deadline that runs, and the remedy available, differ in every row.

FBG § 17 Abs. 1 is one sentence doing four things. It applies where the application is incomplete or another removable obstacle stands in the way of the entry, and it obliges the court to order the defect cured, to give the directions needed where they are needed, and to set a reasonable period. Behind it sits AußStrG § 10 Abs. 4, which forbids rejecting a pleading at once for a defect of form or content that blocks the next procedural step, and requires the court to arrange for improvement first, naming the defect and serving the invitation provably (AußStrG § 10, in force from 1 July 2011).

1. The word that decides everything is "removable". The Supreme Court holds that an improvement procedure is as a rule not available for missing documents that first have to be created, unless obtaining them is quite easily possible (RS0129500, 6 Ob 73/14z and 6 Ob 253/16y). A missing signature is curable. A resolution that was never passed is a different matter.

2. An unclear bundle of requests is itself a defect. Where several entries are sought at once without a clear statement whether they are wanted only together or, in the alternative, in part, that lack of clarity is a defect to be handled under § 17 (RS0059151, 6 Ob 17/93 and five later decisions).

3. The court must ask before it refuses the lot. Where several entry requests are combined and one is refusable, an improvement procedure must be started before the whole application is refused, to establish whether the applicant would also accept a partial grant (RS0109198, 6 Ob 342/97f to 6 Ob 187/17v).

The same authority carries the warning. A partial grant is possible where it is clear the party wants one, but where only a single uniform entry is possible because the individual heads are inseparably connected, the unity of the register application means the whole application is refused if even one request meets an obstacle that is not removable, or that has not been cured despite the order (6 Ob 187/17v, 21 December 2017, note T3). As a rule the court may only grant entirely or refuse entirely, the exception being entries that can have a separate legal fate. One filing carrying a change of director, a change of address and an amendment of the articles is therefore not three filings.

The last limb of FBG § 17 Abs. 1 is the reason this article exists. Where the application was subject to a statutory time limit and the defect is cured inside the period the court set, the application is to be regarded as having been submitted on the day it first arrived. The general rule says the same for pleadings at large: AußStrG § 10 Abs. 5 makes a pleading improved inside the period count as filed at the original time, and adds that an improvement period granted for a Notfrist, a non-extendable statutory period, cannot itself be extended.

The protection is conditional: it is the cure inside the period that produces the original date, so letting the period pass defeats the clause's own condition. And a fresh filing cannot inherit the date, because the clause attaches it to the application that arrived and was then improved. A founder who receives an order to remedy, decides the file looks untidy and sends a clean new application has not cured anything. They have made a second application, on the day it arrived, while the first still sits in front of the court.

The original date has a second life besides any deadline. FBG § 22 Abs. 2 requires the register court to notify the social insurance institution for the self-employed of certain entries stating the day on which the application reached the court: the entry or deletion of a natural person as an unlimited partner of a registered partnership (Z 1 lit. a), and of a natural person who is both managing director and shareholder of a GmbH (Z 2 lit. a). What that day is taken to be where § 17 has moved it is not something the statute states, and this page does not state it either. What the statute does make plain is that the date is reported onward. The obligations that follow are on who has to insure with the SVS.

FBG § 17 Abs. 2 says it in terms: a decision under Abs. 1 cannot be challenged by a separate legal remedy. The general rule agrees. AußStrG § 45 makes first-instance decisions appealable to the court of second instance, but procedural directions only together with the appeal against the decision on the substance, unless a separate challenge is expressly provided for.

So there are two lawful answers to an improvement order and no third. Comply. Or do not comply, put your reasons to the court, and challenge the substantive decision that follows. What is not available is an appeal against being asked. That is also why the order repays close reading: it has to name the defect, and where necessary say what would cure it, so it is the clearest statement you will get of what the court thinks is wrong.

The remedy against a refusal is a Rekurs. The period is fourteen days, running from service of the written copy of the separately appealable decision (AußStrG § 46 Abs. 1, in force from 1 July 2011). It is lodged as a written pleading at the court of first instance and cannot be declared orally to the record (§ 47 Abs. 1). It needs no particular form of request, but must show sufficiently why the party considers itself aggrieved and what other decision it seeks; in doubt, the decision counts as challenged in full (§ 47 Abs. 3).

Three features of this appeal are not obvious from outside Austria.

The register court can allow the appeal itself. Where a Rekurs attacks a decision on the substance and it appears from the file, without further inquiry, that the decision must be set aside or wholly amended in the sense sought, the court of first instance may grant it (AußStrG § 50 Abs. 1 Z 4). The court that refused the filing can correct itself without the file going anywhere.

New facts are admissible, within limits. Facts and evidence raised for the first time on appeal are to be taken into account (AußStrG § 49 Abs. 1); Abs. 2 excludes what already existed and could have been raised below, unless the party shows an excusable lapse, and Abs. 3 admits later facts only so far as they cannot be made the subject of a fresh application without substantial disadvantage. On the register's own subject the Supreme Court is more specific still: the entry request may be supplemented in the appeal to the extent that a curable defect exists, which absent an improvement would have had to lead the appeal court to order the proceedings supplemented so that an improvement could be attempted (RS0059148, 6 Ob 25/95).

The appeal court decides the case, not just the appeal. Where the Rekurs is not to be rejected, it decides the matter itself, supplementing the proceedings if necessary (AußStrG § 55 Abs. 1), within the scope sought except in proceedings the court could have started itself, where it may also decide against the appellant (Abs. 2).

Above that the Supreme Court is not a third chance on the facts: a Revisionsrekurs lies only on a question of law of fundamental importance for legal unity, legal certainty or the development of the law (AußStrG § 62 Abs. 1), with the Zulassungsvorstellung under § 63 the route where the subject matter does not exceed EUR 30,000 and the appeal court has ruled it out.

One person may already be authorised to do all of this without a further power of attorney. Where the declaration required for an entry was recorded or certified by a notary, that notary counts as authorised to apply in the name of the person obliged to file, and to receive service and lodge legal remedies (FBG § 23).

This is the question a returned filing raises first, and the answer sits in a place most readers never open: the annotations to Tarifpost 10, which govern the Firmenbuch fees. The application fee is not a charge for a successful entry. It is a charge for lodging.

A numbering warning, because this act collides with itself. Tarifpost 10 carries two separate series of annotations. One is the numbered Anmerkungen under the headings "Zu Z I lit. a" and "Zu Z I lit. b und c", where number 4 is the rule that the duty to pay is untouched by the outcome. The other is the footnote block at the foot of the tariff, where "Anm. 4" is an amount, EUR 66 from 1 August 2026. A citation to "Tarifpost 10 Anm. 4" therefore points at two different things. This page cites the first series by its heading, as Anmerkungen zu Z I lit. a, Z 4, and the footnote series as Anm. plus its number, which is how the amounts elsewhere on this site are cited.

What the act does not answer, and this page does not invent. The annotation making a fee payable whatever the outcome sits under "Zu Z I lit. a", which is the application fee. Registration fees are charged under lit. b and lit. c, heads defined by entries rather than by filings. No provision was found stating in terms what becomes of a registration fee where no entry is ever made, and this page states no rule about it.

There is no statutory processing time for a Firmenbuch entry, no official average is published, and this site has never quoted one. There is, however, one duty that is the closest thing to a service standard the statute contains.

Since 1 December 2022, on an application for the first registration of a legal entity that is not a reorganisation, and on an application for the Austrian branch of a foreign entity seated in an EU member state, the court must decide as soon as possible. If it cannot decide within five working days of the application reaching the court, it must notify the applicant without delay, and the notification must also state the reason for the delay. It may be generated automatically (FBG § 20a, BGBl. I Nr. 186/2022).

That is easy to over-read. It is not a deadline for the decision. It is a deadline for telling you why there is not one yet, which is a different and more useful thing than a promise nobody can keep. Two categories of filing are outside it: an amendment to an existing entity, and a reorganisation. Those are on changing a registered detail after the company exists.

An improvement order that is not served is still an improvement order, and the period can run against a company that never read it. FBG § 21 Abs. 3 sets out what the court does when service at the registered business address fails because there is no place of delivery there and no other can be established.

It tries first the private addresses known to it: those of the entrepreneur, of the members of the organ authorised to represent the other kinds of entity, and of a Prokurist. If that also fails, that service and every further service may be effected by entry in the Ediktsdatei, the public edicts database, and counts as effected once two weeks have passed since the entry. The public notice must say so, and the notices stay searchable for a year (Abs. 4). The court must then enter the fact that no business address for service is known of its own motion, under FBG § 3 Abs. 1 Z 4a (FBG § 21, in force from 1 December 2022).

That is the argument for an address that is actually attended, put in statutory terms rather than sales ones: the alternative to a real address is not slower post, it is service by publication plus a public entry recording that nobody could be found. The address question is a registered address that actually receives post.

The statutory deadline most likely to put the § 17 protection to work is the one on the accounts: the annual accounts a company has to file are due within nine months of the balance sheet date (UGB § 277 Abs. 1).

The register this all happens in. What is entered, what it costs to look, and what each line of an extract means: what the Firmenbuch holds and how to read an extract.

The filing that goes in first. Capital, the notarial deed and the documents the court expects on a first registration: how an Austrian GmbH is formed.