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The new flexible corporation (FlexKap / FlexKapG / FlexCo) as an alternative to the GmbH in Austria

The “Flexible Kapitalgesellschaft” (FlexKap / FlexKapG / FlexCo) is a new form of company that will be available in Austria from 1 January 2024. It is intended in particular for innovative start-ups and founders, but can generally be chosen as an alternative company form, especially to the limited liability company (GmbH).

The new flexible corporation (FlexKapG / FlexCo) is strongly modelled on the GmbH. According to the legal definition of the FlexCo Act, a flexible capital company is a capital company that can be founded by one or more persons for any legally permissible purpose. As with the GmbH, the FlexCo can therefore also be founded as a one-person company. The FlexCo has a company name and must be entered in the commercial register, whereby the legal form supplement must read "Flexible Kapitalgesellschaft" or "Flexible Company" and be abbreviated to "FlexKapG" or "FlexCo".

The FlexCo differs from the GmbH in several aspects:

  • The minimum share capital of FlexCo is EUR 10,000, just like a GmbH. However, the minimum capital contribution for FlexCo can be EUR 1, which allows for very small shareholdings.

  • In contrast to a GmbH, the shareholders of a FlexCo are also authorised to exercise the voting rights associated with a share on a non-uniform basis.

  • The FlexCo enables the issue of company value shares of up to 25% of the share capital (this is particularly interesting for employee participation).

  • The FlexCo can acquire its own shares under certain conditions.

  • The articles of association can stipulate that the consent of all shareholders is not required for circular resolutions or that compliance with the text form is sufficient (thus simplifying the form of the resolution).

  • In contrast to the GmbH, the transfer of shares is no longer subject to notarisation. The transfer of shares is therefore possible by means of a deed drawn up by a lawyer or notary.

Finally, the conversion options between a GmbH and a FlexCo are simplified: a FlexCo can be converted into a GmbH by resolution of the general meeting. It is also possible to convert a GmbH into a FlexCo. It is also possible to convert a FlexCo into an AG.

Attorney business law

Dr Simon Harald Baier LL.M. advises in connection with company formations, in particular on the formation of FlexKapG/FlexCo and GmbH as well as on all questions of business law.

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