Additional extension of due dates for annual financial statements
On 4 April 2020, the 4th Austrian COVID-19 Act was passed, which amends the COVID-19 Company Law Act (COVID-19-GesG) of 22 March 2020 and introduces additional simplifications for businesses in terms of compliance with their legal obligations. The following due dates and exceptions now apply under Austrian company law:
This article represents the information available to us on 8 April 2020.
Preparation of annual financial statements
The statutory deadline of 5 months for the preparation of annual financial statements and other accounting documents of a corporation, a cooperative or an association may be exceeded by up to 4 months, if the representative body is unable to prepare the statements in time due to the COVID-19 restrictions.
–> The preparation of the annual financial statements as at 31 December 2019 may therefore take place by 30 September 2020 (instead of 30 May) without penalty – theoretically only in the case of inability, but de facto this will apply generally.
Adoption of annual financial statements / Holding of ordinary shareholders’ meeting
The extension to 12 months of the statutory deadline for holding the general shareholders’ meeting of an AG, which was enabled by the 2nd COVID-19 Act, will now also apply to the general shareholders’ meeting of a GmbH and of a cooperative.
Furthermore, the requirement for meetings and sessions for all company forms to be held in person/physically has been suspended and other ways of holding meetings, voting and passing resolutions are permitted. The holding of such “virtual meetings” has been specified in detail in the COVID-19 Regulation on Company Law issued on 8 April 2020. In addition, it is permissible if the statutory quarterly supervisory board meetings do not take place until after 30 April, if it is not possible to hold them due to COVID-19.
These simplifications regarding meetings and resolutions entered into force retrospectively on 22 March 2020 and will apply until the end of the year 2020.
–> The adoption of annual financial statements as at 31 December 2019 and other annual resolutions to be taken annually (e.g. discharge from liability, appropriation of profit) can take place until 31 December 2020 (instead of 31 August).
Submission of annual financial statements
The recently announced 40-day extension of due dates for the submission of annual financial statements (see our contribution of 30 March 2020) is largely obsolete: The period for the disclosure of annual financial statements and other documents has now been extended to 12 months.
In deviation from the previous regulation of 22 March, which refers to a disclosure deadline not yet expired on 22 March, this applies to all annual financial statements which were not supposed to have been prepared by 16 March and which have a due date before 1 August 2020. Thus, all annual financial statements with a balance sheet date between 16 October 2019 and 31 July 2020 are subject to an extended disclosure deadline of 12 months.
The 40-day suspension of due dates continues to apply for annual financial statements which ought to have been prepared by 16 March 2020 but for which the disclosure was not yet due on 22 March 2020 (i.e. those with balance sheet dates between 22 June 2019 and 15 October 2019).
–> The submission of the annual financial statements as at 31 December 2019, including other documents to be disclosed to the Austrian company register, can be made (without triggering fines) until 31 December 2020 (instead of 30 September).
Fines for late disclosure
The extension of due dates by 40 days also applies in relation to fines for late disclosure for legal entities or persons whose disclosures were overdue on 22 March 2020. This applies in particular to the 2-month period for imposing repeated fines in the event that disclosures are still overdue.
In addition, any 2-week appeal period against the imposition of fines which was still ongoing on 22 March 2020 was interrupted as a general procedural deadline on 22 March 2020 and, thus, should begin again on 2 May 2020 and end on 15 May 2020 (unless further extensions are decided, see below). The same applies for appeals against penalty decisions.
The rules described will cease to apply on expiry of 31 December 2020. However, the Austrian Minister of Justice has the power to extend the named deadlines by government directive and specify further provisions in this context.