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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 ways to pursue its commercial activity systematically and predominantly in Austria, this is not considered a temporary delivery of cross-border services. In this case, a branch must 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, 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 or Switzerland as an adequate certificate of competence when

  • the activities comply with the requirements of the EU/EEA Recognition Ordinance, Federal Law Gazette II 2008/225 (see Attachment).

Where trades are involved that are not included in the EU/EEA Recognition Ordinance (see Attachment), 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 certificate of competence.

The certificate of competence or training must be submitted as evidence of the professional qualification acquired.

This must have been issued by a competent authority in the member state of origin.

Should the profession be regulated in the member state of origin, the certificate of competence presented must entitle the owner of the document to exercise the profession in the member state of origin.

If the profession is not regulated in the member state of origin, the applicant must have documents that prove competence or training and must prove that they have pursued the profession for one year on a full-time basis or for an equivalent total period on a part-time basis during the previous 10 years in a member state of origin where that profession is not regulated. 

The year of exercising the profession does not have to be documented if the training certificate of the applicant refers to regulated training.

This is training that is specifically geared towards the practice of a particular occupation and consists of a completed training course or courses and, where applicable, is supplemented by vocational training, a work placement or work experience.

There is no equivalence of the certificate of competence if

  • the training refers to subjects that differ significantly from the Austrian certificate of competence or
  • the trade encompasses one or more professional activities, which, in the applicant’s member state of origin, are not a constituent part of the respective regulated profession and
  • the difference consists of special training prescribed under the Trade Regulation Act and refers to subjects that differ significantly from those covered by the certificate of competence that was provided by the applicant.

This means those subjects, the knowledge of which is an essential prerequisite for the exercise of the profession and in which the applicant's previous training shows significant deviations in terms of duration and content compared to the training required by the Trade Regulation Act.

If no equivalence applies, this must be granted contingent on the adaptation in the form of an

  • adaptation period or an
  • aptitude test,

if equivalence can be achieved in this way.

Before this, it must be examined, in accordance with the principle of proportionality, whether the knowledge acquired during professional experience or through lifelong learning covers all or part of the substantial differences. In this respect, the applicant has the choice between an adaptation period and 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 part of exercising the profession.

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

Stand: