Trade – Succession in title – Continued operation

General information

The entitlement to continue operations involves the right to continue the operation of a business based on the trade licence held by another person.

For such an entitlement to become applicable a valid trade licence and a business conforming to this trade licence must be in place. This business may have been closed down temporarily.

Following the death of a licence holder, the estate’s entitlement to continue operations arises on the date of death. The representative of the deceased's estate is obliged to report, without undue delay, the continued operation of the business to the trade authority.

Once this report is received by the authority, the representative of the deceased's estate will automatically assume the function of managing director appointed under trade law. If the trade to be exercised is of a hazardous nature, she or he must initiate the appointment of a managing director.

Once the settlement of an estate is terminated by devolution, the family members' entitlement to continue operations will begin. Family members may be:

• The surviving spouse
• Until completion of their 24th year: any children (meaning all relatives in line of descent, e.g. including grandchildren and great-grandchildren) as well any adopted children and their children.

For this purpose the business must have been transferred to the above persons either in full or in part under a succession in title following death or under a gift on death.

If operation of a business is continued by the spouse and/or the children and adopted children, this must be reported to the trade authority without delay after devolution.

If the holder of a trade licence dies with spouse as well as children or adopted children entitled to the estate, they will be jointly entitled to continue operations.

If the proof of qualifications required to exercise the trade cannot be provided, the competent authority may, upon request, waive the appointment of a managing director provided that this trade can be exercised without a managing director as defined by trade law without constituting any risk to human health and life.

Enterprises affected

This applies to businesses where business operations are continued based on the trade licence held by another person.

Requirements

For sole traders:

• Nationality:
  • Austria
  • EEA Contracting Parties
  • Switzerland
  • Other third countries: residence status (→ oesterreich.gv.at)
• Legal capacity: Completion of 18th year
• No grounds for disqualification from a trade (e.g. offence incurring financial penalties, court sentence)
  Disqualification may be waived under certain conditions.

For the managing director appointed under trade law:

• Nationality:
  • Austria
  • EEA Contracting Parties
  • Switzerland
  • Other third countries: residence status (→ oesterreich.gv.at)
• Place of residence in Austria, in the territory of an EEA Contracting Party or Switzerland
• Legal capacity: completion of 18th year
• No grounds for disqualification from a trade (e.g. offence incurring financial penalties, court sentence)
  Disqualification may be waived under certain conditions.

For regulated trades and sub-trades:

• Proof of qualification or official decision declaring an individual qualified to exercise the (sub-)trade in question
• Recognition or acknowledged equivalence of EEA certificates of qualification.

Deadlines

Continued operation must be reported without delay

• once the estate's entitlement to continue operations arises, and
• once the family members' entitlement to continue operations arises.

Competent authority

Trade authority locally competent for the business location in question:

• District Authority^{German text}
• in cities with their own municipal law: Municipal Authority^{German text}
  • in Vienna: → Municipal Department MA 63^{German text}

Procedure

Upon the death of the holder of a trade licence, continued operation must be reported to the competent authority, without delay, by the representative of the deceased's estate (e.g. by the widow appointed by the court to represent the estate of a licence holder, or by a notary public).

Once the estate's entitlement to continue operations is terminated by devolution, the heir entitled to continue operations must report to the competent trade authority, without delay, the continued operation of this business.

Continued operation may be reported – either with or without the use of an official form – personally, in writing or (partially) by electronic means.

An informal report shall include the following information:

• Name of the previous holder of the trade licence
• Designation of the trade
• Location of trade
• Trades Register number
• Data on the person entitled to continue operations
  • For estates: personal data of the representative of the estate
  • For family members: personal data

If the children or adopted children have no legal capacity as yet, the report must be filed by the legal representative.

Required documents

For the estate’s entitlement to continue operations:

• Decision of the competent probate court on the entitlement to represent
  the estate.

For the family members’ entitlement to continue operations:

• Several persons entitled to continue operations: per person
  • Decision of devolution
  • Birth certificate and citizenship certificate or passport
  • Residence status for third-country nationals (save Swiss nationals)
  • Confirmation of residence registration
  • Proof of university degrees where applicable
  • If name is changed: also marriage certificate or official decision on change of name
  • Widow/widower: document which supports that marriage was still valid at the time of the spouse's death (e.g. copy from the death register)
  • For persons residing abroad or residing in Austria for under five years: additional police certificate of good conduct from the home country (no more than three months old)
  • Declaration concerning grounds for disqualification from a trade as specified in section 13 of the Gewerbeordnung for natural persons
• For the managing director appointed under trade law:
  • Birth certificate and citizenship certificate or passport
  • Residence status for third-country nationals(save Swiss nationals)
  • Confirmation of residence registration
  • Proof of university degrees where applicable
  • If name is changed: also marriage certificate or official decision on change of name
  • For persons residing abroad or residing in Austria for under five years: additional police certificate of good conduct from the home country (no more than three months old)
  • For managing directors having power of external representation:
    declaration concerning grounds for disqualification from a trade as specified in section 13 of the Gewerbeordnung 1994 (GewO 1994) for natural persons
  • For managing directors having no power of external representation:
    • Declaration for managing directors under trade law
    • Declaration for persons registering a trade or persons requesting a licence
    • Confirmation of the social insurance institution concerning an employment relationship (for regulated trades: contract involving half or more of normal working hours)
    • Bank account number of employer
• For a regulated trade: also
  • Proof of qualification (e.g. certificate of completed apprenticeship, master craftsman’s diploma) or official decision declaring the requesting individual qualified to exercise the trade or, for managing directors, declaring the individual qualified to be managing director
  • Official decision on recognition or acknowledged equivalence of EEA
    certificates of qualification.

Costs and fees

Report: free of charge
Informal notice of entry in the register: free of charge.

Further information

Family members entitled to continue operations may waive this right no later than one month after their entitlement has arisen – if they do so, entitlement will be deemed not to have arisen. Once this waiver is received by the trade authority or submitted to the trade authority, it will become irrevocable.

Even if entitlement to continue operations is not reported to the competent authority, it will nevertheless arise.

Entitlement to continue operations also exists for insolvency estates as well as for court-appointed official receivers or court-appointed lessees.

Legal bases

Sections 13, 39, 41, 42, 43, 44, 45 Gewerbeordnung 1994 (GewO 1994)

Link to form

• Declaration for managing directors^{German text}
• Declaration for persons registering a trade^{German text}