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Setting up of a Branch in Austria by EU/EEA Entrepreneurs - Trade Law Aspects

Begründung einer Niederlassung in Österreich durch EU/EWR Unternehmer - Gewerberechtliche Aspekte

When a foreign company from an EU/EEA state searches for possibilities to pursue its commercial activity systematically and predominantly in Austria, this is not considered a temporary delivery of cross-border services; rather, a branch has to be set up in Austria.

Attention: Operating a branch in a host country means a stable and continuous participation in the economic life of another member state, whereby economic and social connections exist. The branch is characterised by the establishment of agencies, regional offices and subsidiaries.

Under the provisions of the EU Professional Qualifications Directive, implemented in Austria in the Trade Regulation Act, Sections 373a-373h, and in force since 15 December 2007, all member states are required to accept the professional qualifications acquired in other member states. If the requirements of the Directive are met, a member state is not entitled to proscribe the exercise of a profession on its territory due to lack of professional qualification.

In terms of the recognition of professional qualifications for the purpose of establishing a branch in Austria, citizens of Switzerland are treated on an equal footing with citizens of an EU member state or an EEA signatory state.

Within the framework of the setting up of a branch, the recognition of training documents is regulated as follows:

Upon application, the state governor is required to recognise by way of notification the actual pursuit of activities in another member state on the part of a citizen of an EU member state or an EEA signatory state as adequate proof of competence when

  • the activities comply with the requirements of the EU/EEA Recognition Ordinance, Federal Law Gazette II 2008/225 (see Attachment)
  • and no reasons exist for exclusion pursuant to Section 13 of the Austrian Trade Regulation Act 1994 (GewO 1994).

Where trades are concerned that are not included in the EU/EEA Recognition Ordinance, the state governor is required, upon request and taking into consideration the qualification level of the trade in question, to treat the professional qualification acquired and proven by the applicant as being on an equal footing with the Austrian proof of competence when

  • the professional qualification is equivalent to the proof of competence and
  • and no reasons exist for exclusion pursuant to Section 13 of the Austrian Trade Regulation Act 1994. The following trades are affected:

Crafts:

ophthalmic optics, medical supply stores, gardeners, hearing aid acoustician, corsetry manufacturers, orthopaedic boot and shoemaker, orthopaedic technicians, dental technicians

Other regulated Trades:

employment service, construction planning (except building construction), pharmacists, tourist guides, chiropodists, commercial investment consultants, manufacturing of pharmaceuticals and toxins and wholesale trade with pharmaceuticals as well as the manufacturing and processing of medical devices insofar as these activities are not covered by another regulated trade; with the exception of the production of medical suture and organ transplantation material, real estate trustees (real estate agents, real estate managers, property developer), collection agencies, contact lens optics, life coaches, therapists, massage, security centre, engineering firms, temporary employment agencies, management consultants, including company organisation, insurance brokerage, planning of wood constructions.

As proof of professional qualification, the applicant must present the following documents:

  • proof of competence or certificate, diploma or other proof

The documents proving competence or training must to be issued by an authority body competent in an EU member state or an EEA signatory state; they must certify that the owner’s level of professional qualification is, at a minimum, just under the level of the directive prescribed for pursuit of the profession applied for.

Should the profession be regulated in the country of origin, the proof of competence presented must entitle the owner of the document to exercise of the profession in the country of origin.

Should the profession not be regulated in the country of origin, the applicant must have documents that prove competence or training; in addition, he must prove that he has exercised the profession for 2 years on a full-time basis in the country of origin within the past 10 years.

The two years of exercising the profession do not have to be documented if the training certificate of the applicant refers to regulated training.

There is no equivalence of the documents proving competence and training if evidence is provided that the duration of the training is at least 1 year less than the training duration demanded by the Austrian Trade Regulation Act, or if the training refers to subjects that differ significantly from those prescribed by the Austrian Trade Regulation Act;

also not if the trade encompasses one or more professional activities, which, in the applicant’s country of origin, are not a constituent part of the respective regulated profession and if the difference consists of special training prescribed under the Trade Regulation Act and refers to subjects that differ significantly from those covered by the applicant’s documents proving competence and training.

If no equivalence is available, the equal footing must be granted contingent on the adaptation in the form of additional professional experience (professional activity), in the form of an adaptation period or an aptitude test, if equivalence can be achieved this way.

Under the proportionality principle, it must be examined before granting equal footing whether the skills acquired by the applicant during his professional experience cover material differences fully or in parts.

The applicant must be granted a choice between an adaptation period or an aptitude test.

Exempt from this are trades whose exercise requires exact knowledge of Austrian law and for which consultation and advice in terms of Austrian law constitute a material and permanent part of exercising the profession.

The equivalence check must be performed within 4 months of all documents having been presented.

Read more: 225. Ordinance of the Federal Minister of Economy and Labour on the recognition of documents of competence from another EU member state or EEA member state (EU/EWR Recognition Ordinance)



                                                                                                         Status: December 2015

This information leaflet is a joint product of all Chambers of Commerce.

Note: Despite careful editing, no responsibility can be taken for the correctness of this information. Any liability of the Austrian Chambers of Commerce is excluded. The terms used for references to persons always apply to both genders!