Selling a GmbH Share: Notarial Deed, Consent and Process

Selling a GmbH business share in Austria strictly requires a notarial deed — both for the sale agreement and for the transfer itself (Sec. 76 (2) Austrian GmbH Act). Without this form, the transaction is absolutely void, including all payment obligations.

That sets the share sale apart from almost any other contract in business life. And it is only the first of several hurdles erected by the legislator and — more often still — by your own articles of association.

This article covers the sale of individual business shares, for instance when one shareholder exits. For selling the entire company, see Selling a GmbH: process.

Why does the law require a notarial deed?

The notarial deed is meant to impede trading in GmbH shares and protect the parties from rushed decisions. The form requirement reaches far: it also covers preliminary agreements, options and undertakings regarding future share transfers — attempts to bypass the form through intermediate structures regularly fail.

Practically, this means: involve a notary early and plan for lead time. The deed's cost depends on the transaction value; who bears it is a matter of negotiation.

Germany has a comparable rule: Sec. 15 of the German GmbH Act requires notarisation of both the obligation and the transfer; vis-à-vis the company, the shareholder of record is whoever appears in the shareholder list filed with the commercial register.

Who has to consent to the sale?

That is written in the articles of association — which must be read before any thought of selling.

The transfer of business shares can be tied to the company's consent (a restriction known as Vinkulierung). In Austrian GmbHs with several shareholders, this is the rule, not the exception. Added to this are call rights and pre-emption rights: co-shareholders may take over the share on defined terms before it goes to outsiders — often at a valuation formula fixed in the articles that can deviate from market value.

Ignoring these clauses means negotiating for months with a buyer to whom you may not validly sell at all.

How does the sale proceed?

Five steps in practice.

First: review the articles — transfer restrictions, call rights, valuation clauses, tag-along rights.

Second: establish the value. The basis is the company value, broken down to the quota; for minority stakes a discount is negotiable. Orientation: What is my company worth?

Third: find a buyer and negotiate terms — internally (co-shareholders) or externally. With external buyers, confidentiality and staged information release are standard, as in any sale process.

Fourth: obtain consents and waivers — shareholder resolution, waiver of call rights, depending on the articles.

Fifth: execute the notarial deed and file the change of shareholder for entry in the commercial register. Only with this chain cleanly executed is the buyer the new shareholder.

Which taxes apply to the sale?

For natural persons in Austria, the capital gain — sale proceeds minus acquisition cost — is subject to the special 27.5 % tax rate. A worked example including the holding variant is in Selling a GmbH: what remains after tax; the overall system including the asset-deal comparison in Selling a GmbH: taxes.

This article provides legal orientation and is no substitute for legal or tax advice. Form requirements, consent rules and tax consequences belong with a notary, lawyer and tax advisor before signing.

Can I sell a GmbH share without a notary?

No. In Austria, sale agreement and transfer are absolutely void without a notarial deed (Sec. 76 (2) GmbH Act) — even a payment already made then rests on an invalid transaction. In Germany, notarisation is required under Sec. 15 GmbH Act.

What is a Vinkulierung?

A clause in the articles of association tying the transfer of business shares to the consent of the company or the co-shareholders. It protects the shareholder circle from unwanted entrants — and makes the sale process a planning exercise.

Can I sell only part of my business share?

Yes, via the division of the business share — provided the articles allow it. The division and transfer of the partial share are equally subject to the notarial deed requirement and any consent rules.

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