Lending and taking security in Austria: overview
A Q&A guide to lending and taking security in Austria. The Q&A gives a high level overview of the lending market, forms of security over assets, special purpose vehicles in secured lending, quasi-security, negative pledge, guarantees, and loan agreements. It covers creation and registration requirements for security interests; problem assets over which security is difficult to grant; risk areas for lenders; structuring the priority of debt; debt trading and transfer mechanisms; agent and trust concepts; enforcement of security interests and borrower insolvency; cross-border issues on loans; taxes; and proposals for reform.
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This article is part of the global guide to finance. For a full list of contents visit www.practicallaw.com/finance-guide.
Overview of the lending market
To a large extent, the main trends in the Austrian lending market over the last 12 months reflect the trends in the lending markets throughout the EU.
Austria has experienced a fair amount of real estate financing, driven by (among other things) refinancing through covered bond issues. Austria has also witnessed a gradually increasing number of new financial transactions and the increasing M&A activity has also had an effect on acquisition financing activity levels. .
Hot topics on the legal side of the market include:
New Loan Market Association (LMA) templates.
Ratification in Austria in April 2014 of the Foreign Account Tax Compliance Act (FATCA) (that is, a US federal law requiring foreign financial institutions to report to the US Internal Revenue Service (IRS) about their US clients (among other things)).
Ongoing implementation of the Third Basel Accord (Basel III), intended to strengthen bank capital requirements.
Forms of security over assets
Real estate includes:
Objects permanently attached to the land (unselbstständige Bestandteile), such as buildings. Buildings cannot be subject to separate ownership, except for buildings on third party land (Superädifikate) (see Question 3, Tangible movable property).
Accessories that serve the economic purpose of the real property (Zugehör), such as:
Common forms of security
A mortgage (Hypothek) is the only form of security over real estate. A mortgage is the right granted to a creditor concerning a debt to obtain preferential satisfaction from real estate if the debtor does not meet its payment obligations. The existence of a mortgage depends on the actual existence of the underlying debt which the mortgage secures.
To create a mortgage, the mortgagor and the mortgagee must enter into a mortgage deed (Hypothekarurkunde or Pfandurkunde). To be admissible for registration at the land register (Grundbuch), the signatures on that deed must be notarised. To perfect the mortgage, it must be registered in schedule C (Lastenblatt; C-Blatt) of the relevant entry (Einlagezahl) in the land register. The security right comes into existence on registration. More than one mortgage can be registered over a lot of real estate, and priority is determined by the date of the filings for registration at the land register (Prioritätsgrundsatz)
A mortgage can be registered for a fixed amount as a regular mortgage (Verkehrshypothek or Festbetragshypothek), including a certain percentage of the interest, interest on default, and a fixed amount of ancillary costs.
Alternatively, a mortgage can be registered with a maximum amount for loans granted, warranties or damages, as a maximum amount mortgage (Höchstbetragshypothek). The secured obligations under a maximum amount mortgage can vary over the lifetime of the mortgage, with the amount actually secured being the outstanding amount owed by the debtor from time to time.
A simultaneous mortgage (Simultanhypothek) is a mortgage that is extended to more than one piece of real estate.
Tangible movable property
Tangible movable property
Tangible movable property is an object that can be moved from one place to another without damaging its substance. Examples include vehicles, trains, aircraft, machines and inventory. Even certain buildings, such as a house or a market stall on third party land, may be considered movable property, as a building on third party land (Superädifikat). For this to apply, these buildings must have been built with the intent that they would only exist temporarily.
Common forms of security
The most common form of security over tangible movable property is a pledge (Pfandrecht). A pledge is an accessory security interest in rem. It grants the creditor the right to obtain (preferential) satisfaction from the relevant asset where the debtor fails to pay the debt as due. The existence of a pledge depends on the actual existence of the underlying debt.
Transfer of title for security purposes (Sicherungsübereignung) is another form of security. A transfer, however, is not more advantageous than a pledge, as it is subject to the same perfection requirements as a pledge (see below, Formalities).
Creation of a pledge requires a pledge agreement (Pfandbestellungsvertrag) but there are no formal requirements in relation to the agreement. The requirements of perfecting a pledge depend on whether the asset is deemed movable or immovable. If the asset is movable, the borrower (pledgor) must generally transfer possession of the pledged asset to the lender (pledgee) by physically delivering the asset (Faustpfand principle). Alternatively, the borrower (pledgor) may instruct the possessor of the asset to hold it as a pledge for the lender (pledgee). If it is not appropriate to physically deliver the asset (for example, aircraft, heavy machinery, and so on), the pledge can be perfected through a symbolic delivery. In that case, attaching plates, marks or other signs on the asset publicly evidencing the pledge is permissible.
The most common types of financial instrument over which security is granted are:
Shares in a stock corporation (public company) (Aktiengesellschaft).
Shares in a limited liability company (Gesellschaft mit beschränkter Haftung).
Interests in a general partnership (Offene Gesellschaft) or limited partnership (Kommanditgesellschaft).
Common forms of security
The most common form of security over a financial instrument is a pledge.
A pledge over shares or partnership interests is created through an agreement between the borrower (pledgor) and the lender (pledgee). The pledge is perfected via acknowledgement of the pledge by the company or partnership of which the shares or rights have been pledged. If physical shares exist, they will be treated as tangible, movable property. In practice, it is usually agreed that a pledge of shares would normally cover rights to dividend payments, or other membership rights and claims.
The formalities for perfecting a pledge in relation to the various types of business entities are set out as follows:
Limited liability company. Shares in a limited liability company are not evidenced by a share certificate. Therefore, a pledge over shares in an Austrian limited liability company is perfected by giving notice to the managing directors of the company of the pledge.
Stock corporation. The required form of perfection for a pledge of shares in an Austrian stock corporation depends on the type of shares in question and how those shares are evidenced. As a general rule, the pledge of shares in an Austrian stock corporation must be delivered to the pledgee.
Dematerialised shares. The pledge of dematerialised shares held on a securities account must be perfected by notification and instruction by the depository bank to hold the shares as pledged property of the pledgee.
General and limited partnerships. A pledge of interests in a general partnership or limited partnership is perfected by giving notice of the pledge to the partnership.
Claims and receivables
Claims and receivables
The most common types of claims and receivables over which security is granted are:
Receivables (mostly under customer contracts).
Claims under insurance contracts.
Claims under specific contractual arrangements regarding financing.
Common forms of security
The most common forms of security granted over claims and receivables are a:
Assignment for security purposes (Sicherungszession).
The main difference is that, in the case of a pledge, the pledgee is granted the right to preferential satisfaction out of the proceeds, while in the case of an assignment the assignee becomes the "owner" of the claim holding it on trust for the assignor for security with the purpose of obtaining preferential satisfaction.
The creation and perfection of a pledge follows the rules as for pledges over dematerialised securities (see Question 4, Formalities).
A security assignment is created by execution of an assignment agreement. To perfect the security assignment over claims and receivables, the relevant third party debtors must be notified. If the assigned claims or receivables are recorded in the assignor's books and accounts (Buchforderungen), an assignment is perfected by making a book entry (Buchvermerk).
Common forms of security
The most common form of security granted over cash deposits is an account pledge, provided the cash is deposited in a bank account when pledged.
Technically, an account pledge is a pledge of the receivables which the customer has in relation to its bank account. Consequently, the account pledge follows the rules of a pledge over receivables and must be perfected by notifying the bank of the pledge or adequate markings in the pledgor's records and accounts (Buchvermerk) (see Question 5, Formalities).
It is necessary to consider whether terms and conditions of the bank account are applicable to the business relation with the customer as this may create prior ranking pledges. These pledges will have priority if previously established.
The most common types of intellectual property over which security is granted are:
Trade marks (either as a European community trade mark or a national trade mark).
It is not possible to transfer copyrights (Urheberrechte) and therefore a transfer of copyright is not used as security. However, it is possible to grant security over rights under a licence to use a copyright.
Common forms of security
The most common form of security over intellectual property is a pledge.
To create a pledge over intellectual property rights, the pledgor and pledgee must enter into a pledge agreement. The pledge must be registered in the following specialised registers in order to perfect the pledge:
Patent register (Patentregister).
Trade mark register (Markenregister).
Design register (Musterregister).
The registers are kept by the Patent Office (Patentamt).
Security over future assets can be created if the asset can be described in a non-ambiguous way to ensure a clear determination of which items will be part of the collateral (Bestimmheitsgrundsatz). Security over future assets cannot be perfected until the asset has come into existence (see Question 3, Formalities).
Valid security cannot be created over a pool of fungible assets that change over time because of the principle of certainty (Spezialitätsgrundsatz). A pledge would have to be separately perfected in relation to all assets newly coming into the pool.
There are no other types of assets over which security cannot be granted or it is difficult to grant.
Release of security over assets
Due to their accessory nature (Akzessorietät), the pledge and the security assignment automatically cease to exist upon full and complete satisfaction of the secured obligations.
However, if the creation of the pledge required the physical transfer of the assets to be perfected, these assets must be returned to the former pledgor on discharge of the secured debt. All signs used to perfect a pledge of assets that were not suitable for physical transfer must be removed.
A mortgage exists for as long as it is registered in the land register, despite fulfilment of the secured obligations. Upon fulfilment of the secured obligations, the lender must issue an order for cancellation of the mortgage in the land register which the owner of the mortgaged property must file with the land register to deregister the mortgage. On deregistration, the mortgage ceases to exist.
Special purpose vehicles (SPVs) in secured lending
Sale and leaseback
In the case of a sale and leaseback, one party sells an asset and leases it back again from the counterparty. In case of the insolvency of the lessee, the lessor as the legal owner is entitled to segregate the asset from the insolvency estate. Sale and leaseback transactions are commonly used in Austria and would not be recharacterised as a security interest.
In a factoring transaction, a company sells its receivables arising from supplies and services to a factor to convert debt into liquidity. Factoring comes in two forms:
Genuine factoring (echtes Factoring), in which the factor takes over the risk.
Ungenuine factoring (unechtes Factoring), which is factoring without assuming risk of non-payment.
Factoring would not be re-characterised as a security interest.
A hire purchase agreement is a type of lease arrangement where the lessee has the option to acquire title to the asset at the end of the hire period. The paid lease is given full or partial credit against the purchase price. In case of insolvency of the lessee, the lessor as the legal owner is entitled to segregate the asset from the insolvency estate (see above, Sale and leaseback).
Retention of title
Retention of title (Eigentumsvorbehalt) is one of the most common forms of commercial security. The title of the sold asset remains with the seller or supplier until the purchase price has been paid in full. The seller or supplier can demand segregation of an asset from an insolvency estate if the purchaser becomes insolvent prior to full repayment of the purchase price.
There are no other common structures.
Guarantees are commonly used in Austria. They are created by way of an agreement between the guarantor and the beneficiary or by unilateral declaration of the guarantor. They may either be given as:
Suretyship (Bürgschaft). This is where the guarantor undertakes to settle certain obligations of a debtor in the event of default. It is an accessory security and therefore conditional on:
the debtor's default; and
a valid and existing underlying obligation of the debtor.
Guarantee. In this case, the guarantor promises to pay a certain amount of money on the formal request of the beneficiary under the guarantee. The guarantor's obligation is abstract and therefore (unlike a personal guarantee) independent from any underlying legal relationship between the beneficiary as creditor and his debtor.
Risk areas for lenders
A stock company is explicitly prohibited by law from granting financial assistance either in the form of a loan or credit support by giving a guarantee or other security for the purpose of purchasing its own shares. This also applies to limited liability companies because of the general capital maintenance rules.
A parent can guarantee the obligations of its subsidiary under a third party loan without violating any corporate benefit rules. However, a company benefitting from limited liability and limited partnerships (where the partners are limited liability companies), must not grant security for an obligation of an indirect parent or sister company unless the transactions were:
At arm's length.
Justified by a corporate benefit.
Transactions violating capital maintenance rules are void and even security granted to third parties may become unenforceable.
Loans to directors
Loans to directors could be subject to specific approval requirements.
Lenders are restricted by the general principle of good morals (gute Sitten) and by the limits of laesio enormis (that is, where parties to a contract are entitled to rescind certain unequal contracts) from exploiting the carelessness, plight or inexperience of the contracting partner and charge monetary advantages that are clearly disproportional. Usurious loans are void and can result in criminal liability.
A debt may be deemed as to be equity and repayment prohibited in cases where the loan was granted when the borrower is in crisis (as defined in the relevant statute), and the lender either holds more than 25% of the borrower's shares, or otherwise exerts control over the borrower.
Structuring the priority of debts
Contractual subordination of debt is permitted and common in Austria by way of subordination declarations or inter-creditor agreements concluded between senior and subordinated lenders.
Although structural subordination is not commonly used in the market, a creditor can achieve it by lending to different entities at different levels of a corporate structure.
Inter-creditor agreements are common in the market. Generally, they would follow the Loan Market Association (LMA) template.
Debt trading and transfer mechanisms
Secured debt can be transferred by:
Assumption of contract, which combines an assignment of rights and a transfer/assumption of obligations.
Assignment, if there are no obligations to make funds available to be transferred.
Since most forms of security have an accessory nature, the security can only be transferred together with the underlying debt. The relevant perfection requirements regarding existing security must be observed when the debt is assigned.
Agent and trust concepts
Enforcement of security interests and borrower insolvency
The relevant circumstances in which a lender can enforce its loan will depend on the individual contractual arrangements. It is commonly agreed that the lender can accelerate the loan any time after an event of default has occurred. In certain cases a court could hold acceleration invalid (for example, in cases where the lender has not taken the legitimate interests of the borrower into consideration).
A guarantee is usually callable if the secured claim is due and has not been paid in full by the borrower.
A security interest can only be enforced if the secured obligation is due and payable and has not been paid. The lender must give the security grantor prior notice of an intended enforcement. Any surplus proceeds from the enforcement must be transferred to the debtor.
Methods of enforcement
A mortgage is usually enforced by a court through one of the following two ways:
Forced administration (Zwangsverwaltung).
Public auction (Zwangsversteigerung).
Alternatively, the parties can agree (in the relevant security document) on an out-of-court enforcement, either through a public auction or a private sale. In all cases, the lender must inform the borrower that a public auction or private sale will take place if the obligation is not fully paid within a period of at least seven days.
The means of enforcing a movable asset depends on whether it is a tangible or intangible movable asset:
Tangible movable asset. A pledge over a tangible movable asset can be enforced through a public auction by a court or through a private sale if the asset has an exchange price or a market price.
Intangible movable asset. A pledge can be enforced through a public auction or a private sale.
Shares or saving certificates. A pledge over shares or saving certificates which have an exchange price or market price can only be enforced through a private sale, not a public auction. Otherwise, they can be enforced by public auction or (subject to valuation) private sale.
The lender realises the collateral by collecting the receivables from the third party debtor.
Intellectual property rights can be enforced by the security holder by public auction or private sale (subject to valuation).
Rescue, reorganisation and insolvency
Under the Austrian Business Reorganisation Law (Unternehmensreorganisationsgesetz), special court proceedings are available to companies at risk of insolvency. The company's management can apply to initiate reorganisation proceedings if both:
The company's debt-to-equity ratio is less than 8%.
The notional debt repayment period is longer than 15 years.
However, this procedure is almost never used in practice.
A secured creditor would have the right to enforce its security, unless enforcement would jeopardise the continuation of the company. In that case, the creditor is prevented from exercising its rights to enforce its security for a maximum period of six months unless this would cause heavy personal or economic damage to the creditor.
Loan receivables and guarantees immediately become due and payable on the opening of insolvency proceedings. However, payment is made pro rata with other unsecured creditors, according to the amount established by the administrator and the insolvency court.
The insolvency administrator can challenge the validity of legal transactions (including granting security, making loans or guarantees) in the following cases:
Transactions entered into up to ten years before the opening of insolvency proceedings if:
the intent was to disadvantage the creditors; and
the other party was aware of the debtor's intention.
Transactions entered into up to two years before the opening of insolvency proceedings if either:
the intention was to disadvantage the creditors and the other party should have been aware of the debtor's intention; or
no consideration was given.
Transactions with the debtor's close relatives (in case of legal entities, these include board members, partners and certain shareholders) entered into up to two years before insolvency proceedings begin if:
the intention was to disadvantage the creditors; and
the close relative was aware or should have been aware of the debtor's intention.
Transactions entered into in the last year before insolvency proceedings begin, if the other party should have been aware the debtor was squandering assets.
Transactions entered into 60 days before the debtor becoming insolvent or filing insolvency proceedings if:
they unduly favour one creditor; and
that creditor was aware or should have been aware of the debtor's intention.
Transactions entered into during six months before the debtor's insolvency or prior filing of the insolvency proceedings if the other party was aware or should have been aware of the debtor's insolvency.
Creditors are paid in the following order:
Creditors with a segregation right (Aussonderungsrecht) regarding assets can demand segregation of the asset from the insolvency estate.
Secured creditors who benefit from a pledge, a security assignment agreement or a mortgage are entitled to a separate and preferential satisfaction (Absonderungsgläubiger). The ranking of several creditors regarding the same asset is determined according to the principle of priority (see Question 2, Formalities). If the proceeds are insufficient to cover all secured creditors' claims, the secured creditors are treated as unsecured creditors for their outstanding claims (see below).
Bankruptcy expenses (Masseforderungen) must be satisfied first out of the insolvency estate. They include:
costs of the insolvency proceedings;
remuneration of the insolvency administrator;
remuneration of the employees of the insolvent company.
Unsecured creditors (Insolvenzgläubiger) are paid from the remaining insolvency estate.
Subordinated creditors (nachrangige Gläubiger) are paid after unsecured creditors (the claims of a lender are regarded as subordinate, for example, if the loan is regarded as equity-replacing).
Cross-border issues on loans
There are no restrictions on granting security interests, guarantees to foreign lenders or on foreign lenders making loans. However, a person engaging in banking or financial services may be required to obtain a banking licence. Lastly, there is an obligation of notification to the Austrian Central Bank for certain cross-border business for statistical purposes.
Taxes and fees on loans, guarantees and security interests
Stamp duty applies to a number of legal transactions (for example, assignments or personal guarantees), if a written instrument is drawn up (Austrian Stamp Duty Act) (Gebührengesetz).
An instrument is drawn up if either:
It is signed by both parties.
One party makes a written offer, which the other party accepts in writing.
Case law establishes that even transactions concluded virtually (by e-mail) are subject to stamp duty if they have an electronic signature.
Sureties and mortgage agreements are subject to a stamp duty of 1% of the secured amount. Assignment agreements are subject to a stamp duty of 0.8% of the value of the assigned claim.
The fee for the registration of a mortgage in the land register amounts to 1.2% of the secured obligation. Registration of pledges for intellectual property (patents, trade marks and designs) in the respective register incurs fees of EUR40 per registration.
Notaries' fees are payable with respect to real estate and the creation of mortgages, which must be notarised for registration (see Question 2, Formalities). The notary costs depend on the transaction value.
Stamp duty can be avoided under the following circumstances if a document is established and kept outside of Austria and:
Both parties do not reside in Austria.
The parties do not have an establishment in Austria.
The transaction does not involve an asset in Austria.
Stamp duty can also be avoided if the transaction is structured as an offer which is not accepted in writing but is accepted implicitly (for example, by payment of an acceptance fee).
Legal Information System of the Republic of Austria
Description. The Legal Information System of the Republic of Austria is a platform and database providing information on Austrian law. Its main contents are legislation in its current version (federal and state), law gazettes (federal and state) and case law. The Legal Information System also serves as the framework for the authentic electronic publication of the Federal Law Gazette and of the State Law Gazettes.
Florian Klimscha, Partner
Freshfields Bruckhaus Deringer LLP
Professional qualifications. Admitted to the Austrian Bar
Areas of practice. Banking and finance; restructuring and insolvency.
Languages. German, English