As everywhere in Europe, the regulatory framework (in particular, the determination of risk-weighted assets and of own funds) has had a significant impact on overall strategy in the banking sector, which increasingly aims at deleveraging banks’ balance sheets (in particular, by way of disposal of non-core assets).
Fuelled by increasingly expensive energy in the wake of the Ukraine war, consumer prices in the European Union recently rose significantly. The European Central Bank (ECB) is thus falling well short of its inflation target, which is aiming for 2% as the optimum value for the economy. Record inflation in the Euro area is forcing the ECB to act. Thus, in July 2022, the ECB abandoned its zero interest rate policy and increased the key interest rate to the current level of 4.25%.
The ECB decision has had far-reaching consequences for borrowers. The time of cheap loans is over, and loans have become more expensive again. Domestic banks have already been raising interest rates for some time, and a further increase is expected.
Furthermore, on 1 August 2022, stricter criteria for granting private real estate loans came into force. Under the new rules, buyers in the future will have to provide evidence of 20% of the purchase price in the form of equity, the monthly loan instalment may not exceed 40% of the monthly net disposable household income, and the term of the financing may not exceed 35 years. The measures are set to prevent potentially difficult situations on the real estate market. According to the Austrian National Bank, however, Austria is not on the verge of a real estate bubble bursting. The domestic real estate market is still considered stable. However, the momentum of rising prices and the possibility of systemic risk are intended to be curbed by these legal steps.
The Austrian marketplace (Vienna Stock Exchange) has not developed a high yield market as active as those in other jurisdictions.
Predominantly, new issues of bonds admitted to trading on the Vienna Stock Exchange comprise issuance programmes of credit institutions. There is also a limited number of mid-cap issuers and numerous foreign issuers, largely aiming at admission of their instruments to the (non-regulated) multilateral trading facility (Vienna MTF), which does not require the approval and publication of a prospectus in line with the Prospectus Regulation.
There is, nevertheless, a solid share of classic corporate bonds which are largely issued by listed blue chip companies, which do not constitute a true alternative to bank loans for the larger market.
Traditionally, the Austrian lending market has been dominated by credit institutions licensed in Austria. Alternative credit providers such as insurance companies are not regularly seen as original lenders in transactions, but rather rely on acquiring existing exposure from credit institutions which handle the origination.
Austria is a strongly regulated banking market where a banking licence is required both for commercial lending as well as the commercial acquisition of receivables (factoring). The latter will only be fully exempted from the licence requirement if, and to the extent effected for, the purpose of that acquisition is securitisation to special purpose securitisation vehicles (ie, companies specialising in acquiring loan exposure and transferring it to their financing providers, frequently in the form of bond issues).
Limited exceptions apply in the context of small-category financings, such as crowdfunding. In addition, the Austrian regulator (Finanzmarktaufsicht or FMA) has developed a practice according to which the offering of certain very limited alternative structures to classic loan agreements (subordinated loans, sale and lease-back structures, etc) does not require a banking licence.
Other than that, Austrian banking legislation will (with only a few exceptions, for example, where applicable with regards to banking secrecy) not apply to certain companies rendering banking services if and to the extent that these pertain to their original and permitted operations; these include insurance companies, pension funds, non-profit organisations, societies, certain non-EU securities firms as well as alternative investment funds.
In market practice, these exceptions have not led to significant competition for banks. Rather, in specific areas (eg, where insurance companies wish to act as lenders for investment purposes), credit institutions are involved for purposes of origination and pass-on loan portfolios.
In terms of banking and finance techniques, Austrian borrowers rely primarily on local banks (to a significant degree on their respective “house bank”) for their financing. In those cases, the complexity of the loan and security documentation as well as reporting obligations and (financial) governance are fairly limited (and frequently rely on in-house standard documentation).
In addition, the Austrian lending market has seen an influx of both foreign lenders and Austrian banks seeking to provide financing as a syndicate in a club deal, or aiming at syndication of their relevant loans to international banks; in those scenarios, significantly more complex and voluminous loan documentation (based on the standards made available by the Loan Market Association adapted for Austrian needs) has become more common.
Internationally, in the EU and in Austria, the fight against climate change began several years ago. The result so far has been a multi-layered, constantly amended legal structure of agreements and commitments under international law (primarily the Kyoto Protocol and the Paris Agreement), requirements under EU law and national laws.
The EU has decided to restructure the entire financial system to further sustainable finance.
The term “sustainable finance” usually refers to the consideration of environmental and social issues (so-called ESG factors) in investment decisions, leading to more investment in long-term, sustainable activities.
In this context, four core regulations are to be observed.
The Taxonomy Regulation identifies, among others, (i) climate change mitigation, (ii) adaptation to climate change, (iii) sustainable use and protection of water and marine resources, (iv) transition to a circular economy waste prevention and recycling, (v) pollution prevention and control, and (vi) protection of healthy ecosystems as environmental objectives.
In order to be considered a sustainable company in the sense of the Taxonomy Regulation, at least one of these environmental objectives must be achieved and no other must be substantially violated (“do not substantially harm”).
With regard to disclosure obligations in Austria, the Sustainability and Diversity Improvement Act is of particular relevance. It obliges large companies that are of public interest and have more than 500 employees to report (in the management report or in a separate report) on environmental, social and labour issues as well as on measures to respect human rights and to fight corruption and bribery (ie, the ESG factors). In addition, it is necessary to describe the concepts pursued and to indicate the results, the risks as well as the most important non-financial indicators.
Although this would appear to cover only a very small number of companies, the “level down” effect – according to which a company can only fulfil its disclosure obligations itself if, among other things, it can rely on corresponding reliable information from its suppliers – means that many smaller companies will also be affected.
There are three basic routes for banks to be authorised to provide loan financing on a commercial basis to companies domiciled in Austria:
Non-banks may generally only engage in the lending business in Austria if and to the extent that such activity would be exempted from a banking licence for an Austrian entity – eg, by way of the acquisition of loan portfolios by special securitisation purpose entities.
In terms of absolute restrictions on granting loans, subject to the fulfilment of the regulatory criteria (see 2.1 Providing Financing to a Company), there are no specific restrictions on foreign lenders intending to provide debt financing to Austrian borrowers.
There are no legal impediments or restrictions for receiving securities or guarantees which would deviate from the rules that would apply to an Austrian lender.
There are no restrictions, controls or other concerns on and regarding foreign currency exchange which would deviate from the rules that would apply to an Austrian creditor.
There are no restrictions on the borrower’s use of proceeds from loans or debt securities.
Austrian civil law recognises the necessary concepts in order to implement agent and trust structures in Austria in the form of an agency agreement (Auftragsvertrag), which may be combined with the granting of a power of attorney (Stellvertretung), as well as the possibility of certain rights being held by a trustee in its own name but for the account of a third party (trustor).
As a consequence, agency and trust concepts are frequently used in the documentation of Austrian law-governed loans in the form of customary security agency agreements.
A certain degree of complexity (and potential insecurity) is entailed by these structures since Austrian civil law differentiates between so-called accessory securities (akzessorische Sicherheiten) and non-accessory securities (nicht-akzessorische Sicherheiten), whereby the former provide for a stringent link between the existence/validity of the security and the underlying (secured) claim. By way of example, pledge (and mortgage) agreements are strictly accessory so that any defect of the underlying legal relationship (such as the invalidity of the loan claim) as well as the (full) redemption of the claim would automatically result in the lapse of the relevant security right. While structures providing for accessory security rights (such as pledges) being granted to a security agent (which typically hold parts of, but not the entire, loan claim) are customary in Austria these have not been tested (or expressly accepted) by the courts.
This risk does not apply to so-called non-accessory security, which includes (inter alia), the transfer of property for security purposes (Sicherungsübereignung).
These uncertainties are known by domestic, and widely accepted by foreign, participants in the Austrian lending market and the relevant qualifications are customarily included in (enforceability) legal opinions as a standard market practice.
Austrian civil law recognises the concept of assignment, pursuant to which lenders’ rights (but not obligations) may generally be unilaterally transferred from the original or former creditor (assignor) to a new creditor (assignee). However, there are regulatory limitations to this procedure stemming from the fact that Austrian banking secrecy (Bankgeheimnis) prohibits the disclosure of customer data by banks to third parties; exceptions apply (eg, for the conduct of legal disputes with a borrower or for the purposes of certain investigations by authorities) but these will generally not apply to performing loans. Waiver and consent language – inter alia, permitting disclosure of information on a loan and lender to a potential syndicate partner or assignee – is therefore frequently used in non-consumer loans and is standard market practice for loans designed for syndication.
Since this is not a satisfactory structure in practice (in particular, with respect to performing loans), the entirety of any rights and obligations arising from a loan agreement may be transferred by way of transfer of contract (Vertragsübernahme); such transfer requires the consent of all parties involved. It is customary, however, that the loan documentation contains the relevant in-advance consent of the borrower, which is permissible under certain circumstances.
Austrian law-governed security rights will typically transfer alongside the underlying legal relationships (and statuary law provides for a claim of the new lender to have any such security rights transferred from the former lender).
Specific to Austrian law is the possibility of a new creditor, with the consent of the borrower, redeeming outstanding debt with the former creditor thereby causing (against payment) an ex lege transfer of any related security rights. This would, however, require that any such outstanding payments that are due, as a result this redemption (Einlösung) structure would typically not be a viable option in relation to performing loans. The method is frequently used in restructuring scenarios because it permits the swift and secure transfer of security rights.
By way of an alternative, Austrian law would also permit risk transfer structures not resulting in a transfer of the position of the lender of record (such as sub-participations) which would, however, not imply a technical transfer of a claim or security right.
Debt buy-back by a borrower or a sponsor is generally permitted under Austrian law provided that either a repayment is due or voluntary early prepayments are permitted on a contractual basis. In addition, consumer borrowers have (as a general rule) a mandatory right of early repayment.
Austrian law does not recognise or regulate the concept of “certain funds”.
However, public take-over transactions (subject to the Austrian Takeover Code (Übernahmegesetz), which implements the European Take-Over Directive) require debt or equity funding for the acquisition of the target shares (under the hypothesis of a full acceptance of an offer) to be available and to be certified by an independent expert and for that certificate to be included in the published offer documentation.
Other than that, in particular, in private transactions, “certain funds” provisions are not mandatory, but may be used by way of contractual arrangement on a case-by-case basis.
In terms of documentation, there is a divide in the Austrian lending market. On the one hand, local (also major) Austrian banks frequently provide debt financing to their (existing or new) customers on the basis of in-house standard documentation (in conjunction with their general terms and conditions), which may be considered “short form”. On the other, international banks targeting the Austrian market, as well as Austrian banks aiming at the syndication of their lending engagements, increasingly refer to “long form” documentation that is frequently structured and drafted along the lines of the standard provided by the Loan Markets Association (LMA).
In the context of public M&A (take-over) transactions, no public filing or other disclosure of the underlying financial documentation is required; the attestation/confirmation on the available funding of the independent expert to be included in the offer document will suffice as a matter of law.
There are no recent legal or commercial developments that have required changes to the legal documentation.
There are no regulatory limitations on interest charged to customers (borrowers).
However, there are certain basic limitations under Austrian civil law prohibiting “usury” (Wucher). There is a requirement, however, that such interest (agreements) may only then be considered prohibited and unenforceable if and to the extent that the agreed interest rate is clearly disproportionate to market terms and conditions and an agreement to that effect could only be reached (on record) due to the weakness, predicament or inexperience of the borrower. In the retail segment (consumer loans), various information duties and formal requirements apply.
In commercial lending, relevant examples are almost non-existent.
There is no rule or law regarding the disclosure of certain financial contracts.
However, pursuant to the Austrian Banking Act (BWG) banks are required to publish their annual financial statements, as well as their consolidated financial statements. The BWG contains some specific rules on the illustration of financial statements of credit institutions. Banks have to report on a regular basis (depending on the reporting obligation quarterly or semi-quarterly) to the FMA as supervisory authority. These reports are not necessarily publicly available unless it is required by other provisions. In addition, banks must meet several disclosure requirements under the CRR (as amended by CRR II), for example a description of the main characteristics of the equity instruments issued and the required disclosure of remuneration policies and practices.
Repayments of principal under loan transactions are not subject to withholding tax.
Interest payments made to lenders are not subject to withholding tax as a general rule. Rather, such payments will have to be taken into account for the purposes of the (corporate) income tax of the lender.
There are certain types of security arrangements – such as suretyships (Bürgschaften) and assignments (Zessionen) – which, on a standalone basis, would be subject to stamp duty; there is an exception, however, when these transactions are entered into for purposes of securing loan obligations (which are, themselves, exempted from stamp duty).
If debt funding is structured by way of the acquisition of loan receivables (on a commercial basis), which Austrian banking law qualifies as “factoring”, then such assignment may also be subject to Austrian stamp duty (applied at a rate of 0.8% to be calculated on the basis of the consideration for the acquisition of such loan).
Generally, repayments of principal under loan transactions are not subject to withholding tax. In addition, interest payments are not subject to withholding tax as a general rule. Rather, such payments will have to be taken into account for purposes of the (corporate) income tax of the lender. If payment of interest is effected, however, to a non-Austrian lender, then withholding tax in the amount of 35% may apply.
There are numerous double-taxation treaties concluded between Austria and other jurisdictions, which typically provide for such withholding tax to be considered deductible and/or refundable; even though there is a new OECD model convention in force as from 2017 and such model convention is also applicable to existing tax treaties due to acceptance through the MLI (Multilateral Instrument), there are no changes in this respect.
Due to the introduction of comprehensive cross-border information undertakings among authorities, the withholding tax legislation is not applicable from the end of 2016 onwards.
As regards proceeds of a claim under a guarantee or the proceeds of enforcing security, there is generally also no requirement imposed by Austrian law to deduct or withhold tax.
Security rights over shares are the most common security instrument in certain types of financing transactions under Austrian law. Perfection and enforcement vary among the different types of legal forms, of which the limited liability company (Gesellschaft mit beschränkter Haftung or GmbH) is by far the most common.
Security rights over GmbH shares are typically created in the form of a pledge. While the (full title) transfer in a GmbH share requires the form of (an Austrian) notarial deed, this does not apply to a share pledge which is therefore done only in written form. In order to facilitate enforcement, alongside the GmbH share pledge agreement, the pledgor typically grants a (notarised) power of attorney authorising the pledgee to sell and transfer the shares on their behalf and a (written) voting power of attorney (which will normally only be used in case of default). The perfection of a GmbH share pledge requires the notification of the company; while separate confirmation letters (counter-signed or with confirmation of receipt) were common in the past, in intra-group scenarios, the company frequently co-signs the share pledge agreement proper in order to document proper notification (and perfection).
Since shares in joint stock corporations (Aktiengesellschaft or AG) are typically certificated as securities (which is legally prohibited regarding GmbH shares), the major difference between a GmbH and an AG share pledge are the perfection requirements. The AG share pledge agreement (as is the case with the GmbH) requires no specific form and is therefore customarily drawn up in simple written form.
As a basic rule, the perfection of in rem security over movables (such as certificated securities) requires that the pledgee obtains direct or indirect possession (which may be mediated by a third party, such as an account bank, but not the pledgor). Only shares in stock-exchange listed companies (or companies envisaging such admission) and shares traded on a multilateral trading facility (MTF) may be certificated in bearer form; this is effected through a global share certificate and the shares then being introduced into an electronic clearing system. In that case, a pledge may be created by transferring the shares to the pledgee’s securities deposit account or blocking the pledgor’s account in the pledgee’s favour. Registered shares which are certificated (in physical form) must be transferred to the pledge; shares that are not certificated may only be pledged in accordance with the rules on assignments (ie, notification of the company).
Pledges over shares in partnerships – both limited partnerships (Kommanditgesellschaft or KG) and unlimited partnerships (Offene Gesellschaft or OG) – do not require a specific form and are therefore commonly drawn up in writing and perfected through notification of the company.
Companies’ articles of association frequently provide for transfer restrictions that may include a shareholder consent/resolution requirement for the pledge or a transfer of shares/interest in those companies. In order to avoid risks (such as unenforceability or delays during enforcement) it is advisable to have such requirements removed from the articles or to obtain the requisite consent in advance.
Austrian law provides for court-conducted enforcement proceedings unless there is a specific contractual enforcement arrangement in place between the security holder and the security provider that, inter alia, requires a valuation of the asset prior to its commercialisation (unless there is a defined market or stock exchange price). The requisite rules aiming at preserving the pledgor’s interest during enforcement must be followed meticulously when drafting security agreements. Overall, direct enforcement by the pledgee is standard market practice in financing transactions in Austria.
Security rights over receivables may be effected either by pledge or full transfer (assignment) of rights (for security purposes); while both forms occur in practice, security assignments are more common as they provide full title to the secured party.
The transfer of receivables requires an (assignment) agreement between the assignor and the assignee (unless the assignor and the obligor have agreed on a valid assignment restriction). However, if an assignment is effected for security purposes, the same requirements as for pledges will apply and disclosure of the pledge/transfer will be required. In the case of receivables not recorded in the creditor’s/assignor’s books and records (which is rare in business practice), the notification of the obligor is considered sufficient. In the case of receivables being so recorded, Austrian case law has developed an increasingly stringent approach requiring that the pledge/assignment be annotated both in the list of obligors of the assignor as well as in the list of open accounts.
Given the requisite legal restrictions, the notification of the obligor of an assignment/pledge is mostly withheld until an enforcement event occurs.
Pledges and security transfers are not restricted to present receivables of the assignor but may extend also to future receivables or certain classes thereof, if and to the extent that such receivables are properly described in the security agreement.
Cash collateral is most commonly granted in the form of account pledges, which are not subject to specific formal requirements and are therefore typically drawn up in written form. Perfection requires the notification of the account bank. The standard business terms and conditions of Austrian banks contain a pledge arrangement over any and all assets of the customer transferred to the bank’s custody, including accounts with a positive balance. In order to create an effective third-party pledge (to a pledgee other than the account bank), this standard pledge agreement is customarily waived or subordinated.
Real property can be provided as security in the form of a pledge (Hypothek) under Austrian law. In addition to a pledge agreement, which does not require a specific form, the registration of the pledge in the land registry is required. For this purpose, the pledgor/owner of the property needs to provide a specific consent declaration regarding the registration, which must be notarised.
Multiple pledges over one individual property are possible and will rank towards each other in terms of priority (as per registration in the land register).
The registration of a pledge over real property in the land register is subject to a significant registration fee (1.2% of the secured amount), which is typically borne by the pledgor. Under certain circumstances (abundant other security or impeccable financial standing), lenders may temporarily refrain from the registration while having readily executed pledge documentation in place for immediate registration at their discretion.
While security arrangements relating to moveable goods (such as equipment or inventory) are not subject to specific formal requirements, Austrian law imposes stringent standards on perfection which either require the physical transfer of the pledged goods or equivalent measures (in the case that a physical transfer is too onerous, transfer “by way of token” will be considered sufficient).
A full title transfer in such goods for security purposes will be possible but is subject to the identical perfection requirements (to avoid circumvention).
Given these requirements, pledge over moveable assets is not common, in particular in relation to such assets as are required for the daily operations of the pledger.
In individual cases, lenders and borrowers agree on pledges on the contents of warehouses. These are, however, subject to strict requirements under case law entailing, inter alia, signage of the goods affected and the engagement of a special guardian, which will be bound by instructions solely of the pledgee and assure that no goods are removed from a warehouse in the absence of the pledgee’s consent or in the case of direct replacement.
Intellectual Property Rights
Trade marks pledges do not require a specific form. In terms of perfection, a registration of the pledge (which, however, requires notarisation of the pledgor’s consent declaration) is considered necessary and standard.
Patent pledges require a registration in the patent registers.
Copyrights as such may not be pledged or transferred. However, licences may be established or be the subject matter of security rights to achieve an equivalent economic result.
The concept of a “floating charge”, or other universal or similar security interest over all present and future assets of a company, is not recognised by Austrian law. Rather, security arrangements must be made specifically with respect to each and every asset and type of asset and take into account observation of the requisite perfection requirements, which vary significantly.
Austrian law does not restrict downstream guarantees (or other security). However, there are stringent limitations on upstream and cross-stream security.
Distributions to (direct or indirect) shareholders may only be effected by corporations – eg, an AG, a GmbH or a GmbH & Co KG (ie, a limited partnership in which the only unlimited partner is a GmbH) – in the form of formal dividend distributions (based on a balance sheet and appropriate shareholders resolution), in the case of a capital decrease (which also requires a shareholders resolution) or in the form of a potential liquidation surplus.
In addition, a company and its shareholders or affiliates may enter into transactions with each other on arm’s length terms and conditions. This requirement entails that the company will only enter into such transactions with its shareholder or affiliates if and to the extent that it would equally (but hypothetically) enter into the transaction on identical terms and conditions with any unrelated third party.
Austrian case law on these restrictions is based on a case-by-case evaluation and has become increasingly stringent over the last 20 years. In practice, it is advisable to have the management of the company assess the proposed transaction under the business judgement rule, in particular the risks involved, in accordance with the above criteria. The entering into of such a transaction may not, in any event, threaten the existence of the company. A breach of the capital maintenance rules would lead to personal liability of the management and nullity of the transaction.
In order to mitigate the relevant risks, limitation language restricting the (potential) enforcement of upstream or cross-stream security arrangements is common in Austria. Since there are no clear guidelines on the admissibility of upstream or cross-stream guarantees (such as the limitation to certain financial criteria), any type of proposed limitation language is necessarily ambiguous to some extent and decreases the commercial value of upstream or cross-stream security significantly.
For joint stock corporations (AG), there is an outright prohibition on providing financial assistance in relation to the acquisition of their own shares (including in the form of granting advance payments, loans or providing security to a third party in order to provide such assistance). Exceptions only exist for transactions in the ordinary course of business of credit institutions.
Austrian legislation on other corporations (GmbH) does not contain comparable restrictions. As to substance, however, these are similar to those for the AG in view of the Austrian capital maintenance rules as per Austrian case law.
The most relevant risks in relation to the grant of security guarantees are valuations of the principles of accessoriness and capital maintenance rules.
In addition to that, Austrian insolvency law provides for an elaborate set of provisions permitting an insolvency administrator to challenge and void certain transactions entered into prior to the opening of the insolvency proceedings of a security provider. The insolvency administrator is entitled to rescind acts of the bankrupt company if:
In Austria, there are no significant costs associated with the grant of security or guarantees for credit or loan agreements. Besides, no specific prior consent by authorities or statutory interest representation (eg, works council) is required.
Formalities on the release of security depend on the type of security that has been granted.
Accessory security (such as pledges or suretyships) will automatically lapse in the event of a full satisfaction of the secured liabilities. In these cases, no specific formal requirements would apply to the “release” of security; nevertheless, release agreements or confirmations on repayment (which may take the form of pay-off letters issued in advance of such payment) are customary.
In the case of non-accessory securities, depending on the type of security, a formal re-transfer or similar act may be required in order to reverse the original creation of a security right.
In case of securities recorded in registers (such as mortgages, trademarks pledges, etc), even if the pledges are accessory securities, certain formal requirements may apply to the deletion of the relevant security right. For instance, the deletion of a mortgage from the land register will only be possible on the basis of a consent to the release issued by the pledgee (executed in an authenticated form).
These requirements and documentary deliverables may cause significant complexity in refinancing transactions where an outgoing lender/security holder would only agree to a release of security (or the issuance of confirmations) upon full repayment and a new lender/security holder insists on the creation/perfection of the security as a condition precedent to draw-down. In these scenarios, escrow arrangements are common market practice.
As a general rule, Austrian rules on the creation of securities follow the principle of priority when it comes to the in rem perfection of security rights.
Contractual arrangements varying this principle are permissible among creditors (eg, in intercreditor agreements in syndicated loan transactions). This, however, would not have to be observed by an insolvency administrator and/or court in the case of enforcement and/or insolvency proceedings.
In syndicated financing transactions, the appointment of a joint agent/security agent constitutes significant mitigation for larger groups of creditors against this legal concept because the proceeds from an enforcement, or in the course of insolvency proceedings, would be disbursed to the agent/security agent for the account of a larger group of creditors so that internal distribution could be effected as per the agreed terms (and outside of the insolvency proceedings).
With financial stress, a company will look for additional liquidity to shore up its finances to avoid covenant defaults under its existing debt. But if a company is already overleveraged, it may need to find creative ways under its existing debt agreements to allow for a new loan using its existing collateral as security. Lenders in the new loan will likely require a senior priority lien on the company’s collateral. As a result, all existing loans are “primed” when their liens against the collateral are surpassed by the new loan. Most collateral priming transactions tend to fall under two mechanisms – loopholes or amendments. Under the first, a company uses a loophole within the terms of their loan document to allow it to take on additional senior debt secured by collateral already pledged under a separate credit facility. With an amendment, the company works with requisite lenders to amend the existing loan documents to allow for a new senior loan facility and often “priming” the existing facility as a result.
The enforcement of (contractual) security rights varies significantly depending on the type of specific securities (and any contractual arrangements in place); while statutory law provides for enforcement of security rights through the courts as a general principle, deviations by way of contractual arrangements between the parties are permissible.
Regarding the most relevant types of security, the following statutory rules and market practice observations apply.
In the case of shares in a GmbH, it is common market practice to agree on out-of-court enforcement, which entails information to the pledgor, a valuation of the shares and subsequent disposal to the best bidder. In principle, the same applies to shares in an AG; however, if these have a market or stock exchange price, they must be sold at such price without public auction.
In principle, mortgages must be enforced through court enforcement proceedings, which require a public auction of real property, and the involvement of the court is prone to cause delays with the enforcement procedure.
In the case of receivables, there is no specific enforcement procedure; rather, the pledgee will be entitled to directly claim payment from the debtor.
For this type of “personal security”, there is no specific type of enforcement procedure. Rather, depending on the terms and conditions agreed in the relevant security arrangement (eg, “first demand guarantees”), payment may be requested directly from the security provider (guarantor).
It is common market practice that the court enforcement procedure provided for under statutory law is modified to permit out-of-court enforcement. Movable goods may be sold after a notification to the pledgor, a cooling-off period of one month and by way of public auction. Disposal without such auction is permissible and, in the case of securities, mandatory (see the information about share pledges above) if a stock exchange or market price exists.
The same principles would apply to the enforcement into security rights over intellectual property rights.
As a general rule, Austrian law and conflict of laws rules permit the choice of a foreign law as the governing law of a contract, even if that contract is to be enforced in Austria; in terms of market practice this would frequently apply to loan agreements governed by German or English law.
Restrictions apply, however, to the granting and perfection of security rights, which, depending on the type of security, is in most instances governed by local (Austrian) law. By way of example, this would apply to pledges over the shares in Austrian companies, pledges over or security assignments of Austrian law-governed receivables, the creation of pledges/mortgages over Austrian real properties, etc.
Therefore, it is common market practice that security rights over assets located in Austria and/or provided by Austrian domiciled transferors/pledgors are documented in Austrian law-governed security documentation.
A waiver of immunity would basically be upheld in Austria.
As regards the enforcement of non-Austrian judgments or awards, there are three basic categories.
Court Judgments From EU Member States
Due to the Brussels Ia Regulation, which applies in Austria, judgments from other member states of the European Union are generally recognised and enforced in Austria without any additional procedures or retrial of the merits of the case. Limited exceptions may apply in the case of substantial deviations from Austrian law (ie, those that contravene the Austrian ordre public).
Court Judgments From Non-EU Member States
Outside the scope of applicability of the Brussels Ia Regulation, enforceability of a foreign court judgment depends on whether there is a bilateral treaty between the home state of a lender/security holder and Austria. As a substantive criterion, Austrian law (on the enforcement of court judgments) requires reciprocity to be ensured under bilateral treaties or regulations. In addition, it is required that the defendant in the enforcement proceedings had the opportunity to participate in the original proceedings before the foreign court and that the relevant judgment may no longer be challenged before the courts and/or authorities of the foreign state.
Enforcement of a foreign (non-EU) court judgment may nevertheless be denied if and to the extent that the enforcement is aimed at an action which may not be enforced or is not permissible under the laws of Austria or if the ordre public would be violated.
Austria has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Arbitral proceedings and the enforcement of arbitral awards are common in Austria, which maintains a leading international arbitral institution (the Vienna International Arbitral Centre or VIAC).
Impediments to a foreign lender enforcing security in Austria are largely technical and administrative. In civil law court proceedings, competent courts may request cost advances (unless the relevant claimant is domiciled in the EU or in a state that is a party to the Hague Convention on Civil Procedure of 1 March 1954); in addition, translation requirements will apply for non-German language transaction documentation.
As a general rule, any and all claims against a debtor will immediately become due upon the opening of insolvency proceedings. Therefore, there is no requirement for separately terminating, for instance, a loan agreement. Also, under Austrian insolvency law, any agreement on rescission or termination rights, which would apply in the case of the opening of insolvency proceedings, are generally null and void.
In relation to assets that are within the possession of the obligor in an insolvency but subject to in rem rights of third parties (such as pledged assets), Austrian insolvency law provides for specific rights of segregation which will permit that, following enforcement of security, the relevant proceeds will be passed on to secured creditors. If this segregation right is asserted, but disputed by the insolvency administrator (on behalf of the estate), the administrator has the option of redeeming the outstanding debt or initiating separate enforcement proceedings. In cases where turning over an asset to a secured creditor would put the continuation of the debtor’s business at risk, the claim for the returning of the asset is suspended for period of six months from the opening of the insolvency proceedings unless such moratorium would cause an undue hardship to the party holding the security interest.
On a separate note, it must be considered that security rights may be challenged or voided by the insolvency administrator if and to the extent that they have been created within certain time limits applied to the opening of insolvency proceedings, and subject to additional criteria.
There are two basic categories of creditors: senior creditors (ranking pari passu) and junior creditors. A junior ranking of debt may be agreed in lending documentation (on junior/hybrid financial instruments or subordinated loans) as well as by way of retroactive subordination waiver (Rangrücktritt), which would result in the relevant creditor not being repaid in the course of insolvency or liquidation proceedings until and unless any and all non-junior creditors have been repaid. Other than that, statutory law may order mandatory subordination in the case of certain shareholder loans deemed to qualify as equity financing (equitable subordination); this will apply if and to the extent that financing is provided by a qualified shareholder to an Austrian company during a “crisis” (which is assumed if certain financial ratios are fulfilled).
“Quotas” (ie, proceeds obtained in the course of insolvency proceedings) obtained by unsecured senior creditors are typically fairly low; junior debtors (alongside equity holders) do not typically receive proceeds from insolvency proceedings.
Insolvency proceedings in Austria take an average of three years.
The average satisfaction rate with payment schedules is 31.9%, while the average satisfaction rate with restructuring plans is 38.6%.
While the Austrian legislature introduced “reorganisation proceedings”, which should be initiated if a “need for reorganisation” (Reorganisationsbedarf) is identified, in 1997, this regime was and continues to be without any practical relevance.
Besides that, since July 2021 the new Restructuring Act provides a pre-insolvency restructuring regime in line with the Directive (EU) 2019/1023 on Restructuring and Insolvency. A debtor may use the procedures provided by the Restructuring Act to avert insolvency and ensure the viability of its company in the event of “probable insolvency”, which is the case if the existence of the debtor’s company would be at risk without restructuring. The procedure is not available to companies which are illiquid within the meaning of the Insolvency Act.
The core of the restructuring procedure under the Restructuring Act is a restructuring plan which defines classes of “affected creditors”. In order for the restructuring plan to come into effect, the majority of the creditors in each class is required in the first instance; a cram-down is also possible. In addition, the court has to confirm the restructuring plan.
Therefore, other than insolvency proceedings, out-of-court restructuring efforts constitute the prevailing market procedure in Austria. Unless there are specific lending arrangements (such as syndicated loans with market standard majority rules), effective out-of-court restructuring efforts (if a uniform pro rata debt reduction is sought) require, in principle, the consent of all lenders to (i) a definitive settlement (typically requiring a hair-cut), or (ii) organised contractual arrangements with a view to the implementation of a restructuring under stand-still and restructuring contractual provisions. If such a settlement and/or regime is established with (only) majority consent, the dissenting lenders will fully retain their legal position (and remain entitled to full repayment, subject only to a quota reduction in insolvency proceedings).
The same considerations apply to liabilities incurred under bonds. Unlike other (European) jurisdictions, Austrian legislation has not (yet) adopted collective action clauses so that, in principle, the restructuring of a bond (eg, by way of a, possibly temporary, moratorium or hair-cut) would require the consent of all bondholders. Recent Austrian practice has seen individual cases where a special joint representative (Kurator) has been appointed in order to represent bond creditors if and to the extent that their joint interests are affected.
In any structuring of such out-of-court settlements/restructuring, the potential risks of an ensuing insolvency and related legal action (such as a challenge or a voidance of pre-insolvency contractual arrangements by an insolvency administrator) must be considered.
Restructuring Within Insolvency Proceedings
Other than typical insolvency proceedings aiming at the full liquidation of a company’s assets, Austrian law provides for restructuring proceedings in the course of insolvency proceedings based on a so-called “restructuring plan” (Sanierungsplan). These proceedings provide for a certain minimum of the debtor’s liabilities (at least 20%) to be repaid during a maximum period (of two years). As an additional differentiation, these proceedings may be opened by an insolvency court providing for self-administration (in this case, 30% of the debtor’s liabilities have to be repaid) of the debtor (where the management bodies would retain their operational responsibility) as opposed to the withdrawal of self-administration (where a restructuring administrator, similar to an insolvency administrator, would take over day-to-day management). While such insolvency court restructuring proceedings can be, and are frequently, initiated without a prior agreement among the creditors of the debtor, it is common in Austrian restructuring practice that the key terms and conditions of such a restructuring settlement before the court are pre-agreed among the majority of creditors of the debtor.
The key risk or impact of the insolvency proceedings over the assets of a borrower is the fact that the competence for the enforcement of any contractual rights and/or securities is no longer with the creditor or ordinary courts but with the insolvency administrator; while this may not in all instances be a detriment as to substance, it typically causes significant delays.
Other than that, as per their specific set of duties under the insolvency legislation, the insolvency administrator will typically closely scrutinise any and all contractual and, in particular, security arrangements entered into by the borrower for the benefit of a creditor prior to the opening of insolvency proceedings. This may not only result in delays in enforcement, but also in (alleged) claw-back of claims (on the grounds of the nullity/avoidance of contractual arrangements, including the creation of security rights).
In Austria, the majority of project financing is generally in the fields of lifescience, technology, infrastructure and energy. Due to the current economic dislocations, there is currently some noticeable decline in project financing in Austria.
The relevant legislation for the implementation of public-private partnership transactions in Austria involves numerous areas of law (both at the Austrian federal level as well as provincial laws and municipal regulations). Areas of interest involve corporate law (regarding the structuring of a project), general civil law, public procurement, subsidies, zoning and permissions, administrative law in all its variations (environmental, health, other industry-specific laws), etc.
The legal structure of public-private partnerships will largely depend on the type and sector of the project implemented. Possible structures include all standard models, in variations, attributing the property and legal title in the project, the operation and funding to be provided by either the private investor, the public sector or both of these functions jointly; as is commonly recognised in the field of public-private partnership, these forms of co-operation could take the form of the operating model, the co-operation model, the concession model, the contracting model or the leasing model.
In terms of market practice, public private partnership models are applied for a variety of transactions which extend to areas such as roads, logistics, education and, most recently and increasingly, health care. Prior to structuring a project finance transaction in Austria, a full analysis of any and all risks involved would be required, including operational risks, design, development and construction risks and political risks. In addition, from a commercial perspective, the repayment and/or credit risks need to be taken into account.
In terms of governing law, there are no specific rules as compared to “normal” financing transactions. Therefore, there is a certain degree of flexibility as to the governing law for the lending arrangement proper. For security arrangements, it is customary to agree on the applicability of Austrian law.
Legal entities registered in the EU/EEA are free to own real property in Austria. Other entities need an official approval to be able to buy real property in Austria. The acquisition of real property by foreign nationals and entities is governed in Foreign National’s Property Acquisition Act of each federal state. For example, in Vienna, a legal entity registered in Austria but owned by nationals of third countries by more than 50% of shares is considered a foreign entity and thus requires an official approval for buying real property.
The main issues to be considered when structuring a project finance transaction include both legal and non-legal considerations comprising:
Risk mitigation is typically effected by way of conducting due diligence covering the requisite areas (legal, financial, technical, environmental, etc).
The legal forms of preference for project companies in Austria are the GmbH or the GmbH & Co KG. The principal difference between these is the direct attribution of profits and losses to limited partners (ie, tax transparency of the GmbH & Co KG). Also, it must be noted that a GmbH provides great flexibility from a corporate law perspective in that majority requirements and composition of corporate bodies are largely flexible and rights of direction to the management of a project company are statutory.
In Austria, the classic bank or savings bank loan is the most widely used form of financing. In the case of a loan, a distinction must be made between an investment loan and an operating resource loan. The investment loan is granted to finance property, plant and equipment (eg, buildings, machinery, vehicles and office furniture), the working capital loan to pre-finance the purchase of raw materials, goods or suppliers.
For the refinancing of exports, Austrian companies can resort to a number of instruments. Flexible mechanisms are available (eg, commercial financing with the principal bank, framework credit or export financing procedure by the Oesterreichische Kontrollbank (OeKB), or soft loans for selected markets).
Further sources of financing are equity investments or participation in companies as well as (subordinated) shareholder loans. Private business angels or professional venture capitalists can also be considered as investors.
The issuance of bonds constitutes another alternative to bank debt financing for projects; in Austrian practice, however, this has been rare, likely in view of the typically (small) size of projects (by international standards) and capital markets financing being normally taken out by sponsors/operators on a corporate (but not project) level.
Austrian law does not provide for general restrictions on the export or import of natural resources to or from Austria. Exceptions may apply, however, in specific areas, such as under environmental protection laws (in particular, if such resources qualify as waste), arms control, restrictions on the export of products qualifying for “dual use” or, if applicable, sanctions with respect to specific jurisdictions (eg, currently Iran and Russia).
Environmental, health and safety laws, which may apply to projects, are not governed by a uniform set of rules or supervised by one specific authority. Rather, given the federal structure of the Republic of Austria and its membership in the EU, the relevant provisions may be found in federal and provincial laws, regulations, technical directives or EU legislation.
The competence for the enforcement of the relevant provision lies with numerous authorities at federal or provincial level (including municipalities).