Austria · Guide
The FlexCo Two Years On
What It Actually Changed
Twenty-nine paragraphs, a transfer rule narrower than its reputation, an employee share class with a veto, and a review clause the act sets for itself in 2027.
Updated 18 September 2026. Every provision below is read from the consolidated text, with its gazette reference and the date that version took effect.
The Flexible Kapitalgesellschaft has existed since 1 January 2024, and as at 18 September 2026 not one of the act's paragraphs has been amended. What it changed is narrower than the summaries suggest. It did not abolish the notarial deed on a share transfer: FlexKapGG § 12 adds a permitted form and marks it with one word, auch, meaning "also". It did not touch the share capital, the corporate income tax, the audit thresholds or the managing director's duties, because it contains no provision about any of them and § 1 Abs. 2 sends all four back to GmbH law. And it carries its own review clause: § 28 Abs. 2 obliges the Minister of Justice to examine § 12 in 2027 and report to the National Council. The form as a product is on the FlexCo guide; this article is the act.
- Twenty-nine paragraphs, and what each block of them does
- § 12 in full, and the word that changes what it means
- The enterprise-value share past the headline
- What the act left exactly where it found it
- Where the legislature amended another act by name
- Two years on, and what can actually be shown
- Where this article stops
- Sources
- FAQ
Twenty-nine paragraphs, and what each block of them does
The act is short, and reading it in order is the fastest way to see what it is. It is not a company code. It is a list of departures from GmbH law, plus blocks of machinery GmbH law does not have at all. § 1 Abs. 2 sets the default in one sentence: "Soweit in diesem Bundesgesetz keine abweichenden Regelungen getroffen werden, sind auf die FlexKapG die für Gesellschaften mit beschränkter Haftung geltenden Bestimmungen anzuwenden." Everything the act does not say is the GmbH's, so the useful question is not what a FlexCo is but which paragraphs depart.
| Paragraphs | Subject | What they depart from |
|---|---|---|
| § 1, § 2 | the form itself, and a firm name that must carry Flexible Kapitalgesellschaft, Flexible Company, FlexKapG or FlexCo | GmbHG § 5 Abs. 1 |
| § 3, § 5 | a contribution from EUR 1, and the cash actually paid in on it | GmbHG § 6 Abs. 1, § 54 Abs. 3 and § 58; § 10 Abs. 1 first sentence |
| § 4 | the simplified electronic founding | nothing: it confirms GmbHG § 9a is open to a FlexCo |
| §§ 6 to 8 | a supervisory board at medium size, written votes without unanimity, and split voting by one shareholder | GmbHG § 29 Abs. 1 and § 34 Abs. 1 |
| §§ 9 to 11 | the Unternehmenswert-Anteil, the compulsory tag-along, the employee information and leaver rules | no GmbH equivalent exists |
| § 12 | the form of a share transfer and of a subscription declaration | GmbHG § 76 Abs. 2, § 52 Abs. 4 and § 53 Abs. 2 |
| § 13, § 14 | Stückanteile of at least EUR 1 held and sold separately; and division of an ordinary share unless the articles exclude it | GmbHG § 75 Abs. 2 and § 79 Abs. 1 |
| §§ 15 to 18 | acquisition, disposal, redemption and pledge of the company's own shares, including by a subsidiary | no GmbH equivalent exists |
| §§ 19 to 22 | conditional capital, the subscription declaration, authorised capital, and convertible or profit-linked financing instruments | no GmbH equivalent exists; these are AG mechanics |
| § 23, § 24 | capital reduction by redeeming shares, and when it takes effect | no GmbH equivalent exists |
| § 25, § 26 | conversion into and out of a GmbH, and into and out of an AG | new routes |
| §§ 27 to 29 | gender-neutral reading, entry into force with the 2027 review clause, execution | final provisions |
The act as it stands on 18 September 2026, BGBl. I Nr. 179/2023, every paragraph in the version in force from 1 January 2024. Four of the twelve rows have no counterpart in GmbH law at all, and three of those four are about raising and retiring capital rather than about employees.
FlexKapGG § 12 in full, and the word that changes what it means
FlexKapGG § 12 is the provision the form is known for, and it has four subsections, not one. Abs. 1 reads that a transaction concerning the transfer of shares "kann auch in der Form abgeschlossen werden, dass eine Notarin oder eine Rechtsanwältin eine Urkunde darüber errichtet". The operative word is auch. The paragraph adds a permitted form; it does not remove the old one. A FlexCo share may still move on a full Notariatsakt, and the articles still must be one, because GmbHG § 4 Abs. 3 requires it and the act departs from that only through the simplified electronic route in § 4.
What Abs. 1 reaches is fixed by the reference it carries, to GmbHG § 76 Abs. 2, which has two sentences: "Zur Übertragung von Geschäftsanteilen mittels Rechtsgeschäftes unter Lebenden bedarf es eines Notariatsaktes. Der gleichen Form bedürfen Vereinbarungen über die Verpflichtung eines Gesellschafters zur künftigen Abtretung eines Geschäftsanteiles" (GmbHG § 76). So the lighter form covers the transfer itself and the agreement obliging a shareholder to assign in future, which is what an option or a put and call arrangement is. Two duties attach to whoever draws it: check that the transfer is admissible, and instruct both parties on the legal consequences of their declarations and on any further conditions of effectiveness.
Abs. 2 extends the same form to three declarations that are not transfers at all: the subscription declaration on a capital increase under GmbHG § 52 Abs. 4, the same declaration on authorised capital under FlexKapGG § 21 Abs. 5, and the exercise of a subscription right under § 20 Abs. 1. Here the professional instructs one party, not two. Abs. 3 then changes the filing: in those cases the original deed goes with the Firmenbuch application, departing from GmbHG § 53 Abs. 2.
Abs. 4 carries three conditions that are almost never reported. A notary or attorney may not draw the deed in a matter in which they are themselves involved; the instruction must be recorded in the deed; and the deed does not go in a drawer: "Die Notarin oder die Rechtsanwältin hat die Vornahme der Belehrung gemäß Abs. 1 oder Abs. 2 in der Urkunde zu dokumentieren. Die Urkunde ist im Urkundenarchiv des österreichischen Notariats bzw. im anwaltlichen Urkundenarchiv zu speichern." A FlexCo transfer therefore leaves an archived instrument carrying a documented instruction, not a private contract between two parties.
Two lighter rungs sit outside § 12. § 20 Abs. 1 third sentence takes one case out of both forms: "Die Übernahme weiterer Anteile im Rahmen eines Stufenplans bedarf nicht der Form eines Notariatsakts oder der in § 12 geregelten Form." Staged follow-on subscriptions need no professional instrument. And § 9 Abs. 6 says of the enterprise-value share that "Für die Übernahme oder die Übertragung von Unternehmenswert-Anteilen reicht die Einhaltung der Schriftform": written form, no notary, no attorney.
Heaviest form at the top · lightest at the bottom
- 1Articles of associationGmbHG § 4 Abs. 3 · FlexKapGG § 4Notariatsakt, or the simplified electronic founding
- 2Share transfer, and the obligation to transferFlexKapGG § 12 Abs. 1Notariatsakt or the § 12 deedThe three FlexKapGG § 12 Abs. 4 conditions attach here: the professional may not be involved in the matter, the instruction must be documented in the deed, and the deed must be stored in the notarial or attorneys’ archive.
- 3Subscription declaration, authorised capital, exercise of a subscription rightFlexKapGG § 20 Abs. 1Notariatsakt or the § 12 deedThe three FlexKapGG § 12 Abs. 4 conditions attach here: the professional may not be involved in the matter, the instruction must be documented in the deed, and the deed must be stored in the notarial or attorneys’ archive.
- 4Further shares taken up under a staged planFlexKapGG § 20 Abs. 1, third sentenceneither form
- 5Enterprise-value shareFlexKapGG § 9 Abs. 6written form alone
Choosing between a GmbH and a FlexCo on the strength of the transfer rule?
Send the shareholding structure, whether anyone will hold employee shares, and how often the cap table is expected to move. We set out which level of form each step falls under and what the articles have to say for it to work.
The enterprise-value share past the headline
The short description of an Unternehmenswert-Anteil is a non-voting employee share below 25 percent of capital that moves on written form, and every part of that is true. It is also the first two subsections of a paragraph that has nine. The rest of § 9, with §§ 10, 11 and 15, is where the obligations sit, and the rows below are the ones a summary drops.
| The rule | Where |
|---|---|
| They do vote, on two subjects. § 9 Abs. 4 withholds the vote "abgesehen von den Fällen des Abs. 5", and Abs. 5 requires the consent of every affected holder for a resolution changing their Abs. 3 rights or converting their shares into ordinary shares. On those resolutions they have the same participation and action rights as any other shareholder, and the articles may add further cases | § 9 Abs. 4 and Abs. 5 |
| That consent falls away only where the articles already provide equal treatment with the founding shareholders and a priority for later shares was expressly reserved when the shares were granted | § 9 Abs. 5 third sentence |
| A profit or liquidation entitlement different from the paid-in proportion is permitted only if it still gives at least equal treatment with the founding shareholders | § 9 Abs. 3 second sentence |
| No pre-emption right on a capital increase unless the articles give one: "Bei Kapitalerhöhungen kommt ihnen kein Vorrecht zur Übernahme der neuen Stammeinlagen zu, sofern dies nicht im Gesellschaftsvertrag vorgesehen ist." Dilution is the default | § 9 Abs. 2 |
| Information and inspection rights are exclusively those in GmbHG § 22 Abs. 2 and 3, and nothing wider | § 9 Abs. 4 first sentence |
| The invitation to a general meeting, notice of a written vote and the resolutions passed need not be sent by registered letter | § 9 Abs. 4 last sentence |
| The founding shareholders must be named in the articles, and must hold a majority of the capital at the moment the enterprise-value shares are granted | § 10 Abs. 2 first sentence |
| The tag-along is a guarantee under ABGB § 880a second case, and the documents showing the agreed price and conditions must be made available to every holder | § 10 Abs. 2 and Abs. 3 |
| The company may buy its own enterprise-value shares back, and the price must be financeable out of freely distributable assets | § 15 Abs. 1 Z 6 with Abs. 4 |
| Converting one into an ordinary share is a capital reduction plus a matching increase, and it is one of the two resolutions the holders can veto | § 9 Abs. 9 with Abs. 5 |
FlexKapGG §§ 9, 10, 11 and 15, in force from 1 January 2024, read at source on 18 September 2026. Measured the same day against the consolidated federal law in force, the term Unternehmenswert-Anteile appears outside its own act in three paragraphs of three other acts: EStG § 67a for the deferred employee taxation, FBG § 5 for the register, WiEReG § 5a for the beneficial-owner file. The § 67a conditions are on the FlexCo guide.
What the act left exactly where it found it
This is the half of the subject that gets no coverage, and for a founder it is the more useful half. A FlexCo is a GmbH everywhere the act is silent, and it is silent about most of what a company costs and most of what its directors owe.
| Subject | Where it is actually governed | What the FlexKapGG contributes |
|---|---|---|
| Minimum share capital | GmbHG § 6 Abs. 1, EUR 10,000 since 1 January 2024 | nothing. The act states no capital figure of its own; § 1 Abs. 2 supplies it |
| The cash that must be in before registration | § 5 displaces only the first sentence of GmbHG § 10 Abs. 1 | one sentence. Whether the GmbH's aggregate survives is unsettled, and is set out on the FlexCo guide |
| Contributions in kind and their audit | GmbHG § 6a and § 10a | nothing, beyond the § 9 Abs. 9 carve-out on conversion. See paying share capital in something other than money |
| The articles of association | GmbHG § 4 Abs. 3, a Notariatsakt | § 4 confirms the § 9a simplified electronic route is open to a FlexCo |
| The managing directors: appointment, duties, care, liability, disqualification | GmbHG §§ 15 to 25 | nothing at all. The act contains no provision about them |
| Corporate income tax, and the minimum corporate tax | KStG § 22 Abs. 1 and § 24 Abs. 4 Z 1 | nothing. § 24 Abs. 4 Z 1 enumerates AktG § 7, GmbHG § 6 and the SE Regulation and never names the FlexKapGG. See what the minimum corporate tax in Austria is |
| Books, size classes, audit and disclosure | UGB §§ 189, 221, 268 and 277 | § 6 adds one supervisory-board trigger at medium size, and nothing else |
| The trade licence | the Gewerbeordnung | nothing. No paragraph of the act mentions a trade |
| The register procedure and the constitutive entry | FBG, and GmbHG § 9 for the application | § 2 Z 5a makes it a class of registered entity in its own right. See the company register guide |
Compiled by reading all twenty-nine paragraphs of the FlexKapGG on 18 September 2026 and recording what each one displaces. Where the act says nothing, the GmbH provision named in the middle column governs, through § 1 Abs. 2.
Where the legislature amended another act by name, and where it did not
A new company form is only as real as the other statutes that notice it. The Firmenbuchgesetz gained § 2 Z 5a, a class of registered entity of its own, and FBG § 5 had its opening line rewritten to read "Bei Aktiengesellschaften und Gesellschaften mit beschränkter Haftung (Flexiblen Kapitalgesellschaften)", which is how a FlexCo sits inside the GmbH register rules while holding its own entity class. Both EU directive annexes were updated, so a foreign parent finds the FlexCo in the same lists as a GmbH: EStG Anlage 2, the Parent-Subsidiary list, and UmgrStG Anlage 3, the Merger Directive list, both name the Flexible Kapitalgesellschaft from 1 January 2024 (BGBl. I Nr. 200/2023). The WiEReG went further than the exemption test most descriptions reach: § 5a Abs. 1 Z 2 lit. d requires a compliance package for a FlexCo to include the articles where they depart from GmbHG § 39 Abs. 2 first sentence on votes or control, and "das Anteilsbuch über die Unternehmenswert-Anteile oder ein anderer Nachweis über die Anteile der Unternehmenswert-Beteiligten" (WiEReG § 5a, in force from 1 October 2025). A compliance package is optional, but where one is filed the share book that stays out of the public register goes to the register authority.
Social insurance was amended expressly rather than by referral. GSVG § 2 Abs. 1 Z 3, in force from 1 January 2024, reaches "die zu Geschäftsführern bestellten Gesellschafter einer Gesellschaft mit beschränkter Haftung oder Flexiblen Kapitalgesellschaft". That is worth noticing, because § 1 Abs. 2 operates on company law and a social insurance act is not company law.
Two places were left alone, and both matter to a budget. The Gerichtsgebührengesetz tariff still names no first-registration fee for a Flexible Kapitalgesellschaft, although the same tariff was amended twice to name the FlexKapGG for a conversion; that is set out on the FlexCo guide. And KStG § 24 Abs. 4 Z 1 still computes the minimum corporate tax as "5% eines Viertels der gesetzlichen Mindesthöhe des Grund- oder Stammkapitals" by reference to AktG § 7, GmbHG § 6 and the SE Regulation. In both, the figure for a FlexCo is reached across two statutes rather than quoted from one, and both pages say so.
Two years on, and what can actually be shown
Four things are checkable on the record, and the last is the reason this article exists.
The act has not been amended once. All thirty consolidated documents of the FlexKapGG, the twenty-nine paragraphs and the act's own header, carry the same entry into force, 1 January 2024. Asked for the version in force on 1 January 2027, 2028 and 2029, the same database returns those thirty documents unchanged, so nothing is gazetted and waiting either.
A later statute picked the form up. From 1 August 2026 an Austrian law firm may be constituted as a Flexible Kapitalgesellschaft: RAO § 21a Abs. 4 sets its minimum professional indemnity cover at EUR 2,400,000 for each claim, and § 21c Z 1 lit. g admits a FlexCo as the sole general partner of an attorneys' partnership (BGBl. I Nr. 63/2026).
There is no reported case law on it. Searched on 18 September 2026, the case-law databases of the Oberster Gerichtshof, the Verwaltungsgerichtshof and the Verfassungsgerichtshof return no decision for the act, its abbreviation or the enterprise-value share. The same search returns 142 documents for Notariatsakt and 170 for Privatstiftung, so the zero is the state of the databases and not a failed query. It is not proof that nothing has been decided: register-court decisions at first instance are largely unpublished, and an unappealed refusal never reaches these databases at all.
The statute has an appointment with itself in 2027. § 28 Abs. 2 reads: "Die Bundesministerin für Justiz hat im Jahr 2027 auf der Grundlage der praktischen Erfahrungen mit der in § 12 geregelten Form von Anteilsübertragungen und Übernahmeerklärungen im Einvernehmen mit dem Bundesminister für Arbeit und Wirtschaft die Zweckmäßigkeit dieser Bestimmung zu prüfen und dem Nationalrat darüber zu berichten" (FlexKapGG § 28). The lightest form in the act was enacted with a built-in test of whether it was a good idea, and the report is due next year. What it will say, and whether anything follows it, no page can tell you today.
One thing is deliberately absent: a count of how many FlexCos exist. Figures circulate, none of them traceable to a primary publication, and a number without a source is worth less here than saying we do not have one.
Before the articles go to the notary
Send the draft articles and the share classes you intend to create. We set out which clauses the act requires rather than permits, which provisions apply only if the articles opt in, and what the register court is likely to query.
Where this article stops
This article states what the paragraphs require and what follows from them mechanically. It does not say which form suits a particular business, whether a grant of enterprise-value shares qualifies for the § 67a treatment, or how a cap table should be arranged, and it cannot: advice on a taxpayer's own position is reserved to a licensed Austrian Steuerberater by WTBG 2017 § 2 Abs. 1, and § 124 Abs. 1 Z 1 makes even offering it an offence. Whether a given deed satisfies § 12 is for the notary or attorney who draws it, on whom the act places the duty to check admissibility.
Sources, and how this article is kept accurate
Last updated 18 September 2026, when every provision below was read from the consolidated text published by the Bundeskanzleramt through the RIS open-data service.
- FlexKapGG, BGBl. I Nr. 179/2023, all twenty-nine paragraphs in the version in force from 1 January 2024; § 1, § 9, § 12, § 20 and § 28 are linked above and the rest are cited in text.
- Other acts read at source: GmbHG § 4 Abs. 3 and § 76 Abs. 2; FBG § 2 Z 5a and § 5; GSVG § 2 Abs. 1 Z 3; WiEReG § 5a (in force 1 October 2025, BGBl. I Nr. 151/2024); EStG Anlage 2 and UmgrStG Anlage 3 (both BGBl. I Nr. 200/2023); KStG § 24 Abs. 4 Z 1 (in force 1 January 2026); RAO § 21a and § 21c (in force 1 August 2026, BGBl. I Nr. 63/2026). The full list of provisions cited without a link is at the foot of this file.
- The negative findings are queries, and they repeat. No amendment, no FlexKapGG in the KStG minimum-tax enumeration and no decision in the three case-law databases were each established by asking the same open-data service, with a control query in the case-law search so a zero could be told apart from a broken one.
Frequently asked questions
What did Austria's FlexCo actually change?
It added a company form that is a GmbH wherever its own act is silent. The FlexKapGG departs from GmbH law on the name, the EUR 1 contribution, the pay-in, the supervisory board, written votes and the form of a transfer, and it adds machinery GmbH law has no counterpart for: the enterprise-value share, own shares, conditional and authorised capital.
Has the FlexKapGG been amended since it came into force?
No. All thirty consolidated documents of the act carry the same entry into force, 1 January 2024, and asking the RIS open-data service for the version in force on 1 January 2027, 2028 and 2029 returns the same thirty documents unchanged. Nothing is gazetted and waiting to commence.
Is a notarial deed still needed to transfer a FlexCo share?
Not necessarily, but it is still available and still valid. FlexKapGG § 12 Abs. 1 says a transfer transaction may "auch" be concluded in the form of a deed drawn up by a notary or an attorney. The word means also. The paragraph adds a permitted form rather than abolishing the notarial deed.
Which FlexCo documents still need a full notarial deed?
The articles of association. GmbHG § 4 Abs. 3 requires the Notariatsakt form, which may be executed electronically, and the FlexKapGG departs from it only by confirming in § 4 that the simplified electronic founding under GmbHG § 9a is open to a FlexCo. The § 12 form applies to transfers and subscription declarations, not to formation.
Who may draw up the deed under FlexKapGG § 12, and what must they do?
A notary or an attorney. Under § 12 Abs. 1 they must check that the transfer is admissible and instruct both parties on the legal consequences of their declarations and on any further conditions of effectiveness. On a subscription declaration under Abs. 2 the instruction runs to the one party making it.
What happens to a FlexKapGG § 12 deed after it is signed?
It is archived. § 12 Abs. 4 requires the instruction to be documented in the deed itself, and the deed to be stored in the Austrian notarial deed archive or the attorneys' deed archive, with Notariatsordnung § 5a and RAO § 10 Abs. 4 applying otherwise. On a capital increase, Abs. 3 requires the original to be enclosed with the Firmenbuch application.
Can a notary or attorney draw the deed if they are involved in the deal?
No. FlexKapGG § 12 Abs. 4 first sentence bars a notary or attorney from drawing up a deed under Abs. 1 or Abs. 2 in a matter in which they are themselves involved. It is a flat prohibition in the act, not a professional guideline, and it sits alongside the documentation and archiving duties in the same subsection.
Are there FlexCo steps that need no deed at all?
Two. FlexKapGG § 20 Abs. 1 third sentence says taking up further shares under a staged plan needs neither a notarial deed nor the § 12 form. And § 9 Abs. 6 says written form suffices for subscribing or transferring an enterprise-value share, with no notary and no attorney involved.
Do enterprise-value shareholders really have no vote?
Not quite. FlexKapGG § 9 Abs. 4 withholds the vote "abgesehen von den Fällen des Abs. 5". Abs. 5 requires the consent of every affected holder for a resolution changing their profit and liquidation rights or converting their shares into ordinary shares, and on those resolutions they have the same participation and action rights as other shareholders.
Are enterprise-value shareholders protected against dilution?
Not by default. FlexKapGG § 9 Abs. 2 provides that on a capital increase they have no priority right to take up the new contributions unless the articles of association say so. Any different profit or liquidation entitlement under Abs. 3 must still give them at least equal treatment with the founding shareholders.
What can an enterprise-value holder see of the company's accounts?
Only what GmbHG § 22 Abs. 2 and 3 allow. FlexKapGG § 9 Abs. 4 gives them those information and inspection rights over the accounting records, books and papers exclusively. The same subsection lets the company send meeting invitations, notice of written votes and passed resolutions without using registered post.
Does the enterprise-value share book stay inside the company?
Not always. The managing directors keep the Anteilsbuch under FlexKapGG § 9 Abs. 7, and WiEReG § 5a Abs. 1 Z 2 lit. d requires a compliance package for a FlexCo to include it, or another proof of the holders' shares, alongside the articles where they depart from GmbHG § 39 Abs. 2 on votes or control.
Did the FlexCo change the minimum share capital?
No. The FlexKapGG states no capital figure at all. GmbHG § 6 Abs. 1 governs both forms at EUR 10,000 through the § 1 Abs. 2 referral, and that figure has applied to the GmbH since 1 January 2024 as well. What § 3 changes is the smallest single contribution, which is EUR 1 rather than EUR 70.
Is there any Austrian case law on the FlexCo yet?
None that is published. Searched on 18 September 2026, the case-law databases of the Oberster Gerichtshof, the Verwaltungsgerichtshof and the Verfassungsgerichtshof return no decision for the act or for the enterprise-value share. Register-court decisions at first instance are largely unpublished, so that is the state of the databases rather than proof.
Is anything scheduled to happen to the FlexCo rules in 2027?
Yes. FlexKapGG § 28 Abs. 2 obliges the Minister of Justice, in 2027, to examine the expediency of the § 12 form of share transfers and subscription declarations on the basis of practical experience, in agreement with the Minister for Labour and Economy, and to report to the National Council on it.
If the form matters more than the paragraph
What a FlexCo costs to set up and what it obliges you to do. Company Registration Austria: FlexCo (FlexKapG): Austria's Flexible Company is the page this article supports: formation, the enterprise-value clauses the articles must carry, and the court fees.
Or work back from the form decision. Read the GmbH guide for the older form, and the types of companies guide sets all of them side by side. When the file is real, ask about an Austrian FlexCo, or start your onboarding if you are ready to engage.