Information about Section 13 of the Trade, Commerce and Industry Regulation Act 1994

Section 13(1) (Convictions of criminal offences)

Natural persons are excluded from exercising a trade if

1. they have been sentenced by a court

a) due to fraudulent withholding of social security contributions and surcharges pursuant to the Construction Workers' Leave and Severance Pay Act (BUAG) (Section 153d of the Criminal Code (StGB)), organised illegal employment (Section 153e StGB), fraudulent bankruptcy, damage to third-party creditors, favouring a creditor or grossly negligent harm to creditors’ interests (Sections 156 to 159 StGB) or

b) due to a custodial sentence of more than three months or to a fine of more than 180 daily rates due to any other criminal offence and

2.) the conviction has not been expunged.

Natural persons are excluded from exercising a gastronomy trade if they have been served a non-expunged judicial sentence due to violation of Sections 28 to 31a of the Narcotic Substances Act (SMG), Federal Law Gazette I No. 112/1997, as amended from time to time. In the case of fines not measured in daily rates, the custodial sentence as an alternative to payment of the fine shall apply. Where a person is sentenced to both a custodial sentence and a fine, the custodial sentence and the custodial sentence as an alternative to payment of the fine shall be added together, where one month shall be considered equal to thirty days. The provisions of this section also apply if similar offences to the stated grounds for exclusion have been committed abroad. 

Section 13(2) (Financial offences)

Any person who has been sentenced by a financial criminal authority for the financial offence of smuggling, the evasion of import or export duties, the handling of goods on which duty has been evaded pursuant to Section 37(1)(a) of the Financial Offences Act, Federal Law Gazette No. 129/1958, as amended from time to time, the evasion of monopoly revenues, the deliberate encroachment on a State monopoly right or the handling of goods on which monopoly revenues have been evaded pursuant to Section 46(1)(a) of the Financial Offences Act, is excluded from exercising a trade if a fine of more than EUR 726 has been imposed on them for such a financial offence or if a custodial sentence has been imposed in addition to a fine, and if less than five years have elapsed since the sentencing. This also applies if similar offences to the stated grounds for exclusion have been committed abroad. 

Section 13(3) (Bankruptcies and insolvencies)

Legal entities are excluded from exercising a trade as trade professionals (Section 38(2)) if

1. the insolvency proceedings were not legally initiated or were lifted due to a lack of finances to cover costs and

2. the period in which insight into the insolvency files is granted in the stated case of insolvency, has not yet expired.

This also applies if a similar offence to the stated ground for exclusion has been committed abroad. 

Section 13(4) (Insolvencies when carrying out insurance mediation activities)

Legal entities are also excluded from establishing a trade which involves insurance brokerage or credit brokering activities, except in the cases of Section 3, if insolvency proceedings have been initiated over their assets and the period in which insight into the insolvency files is granted has not yet expired. This also applies if a similar offence is committed abroad. The ground for exclusion shall not apply if, within the context of the insolvency proceedings, the restructuring plan has been confirmed by the court and has been complied with, or if, within the context of the insolvency proceedings, the court has confirmed the debtor’s payment schedule and the payment schedule has been complied with, or after an absorption procedure has been conducted, an exemption from residual debt has been granted and has not been revoked. 

Section 13(5) (Significant control of excluded businesses)

A natural person is excluded from exercising a trade as a trade professional if they, as a natural person, have or have had significant control over the operation of the business dealings of another legal entity, for which the exclusion from exercising a trade pursuant to Section 3 enters or has entered into force. If a ground for exclusion pursuant to Section 4 applies to the legal entity, the natural person is only excluded from exercising a trade that involves insurance brokerage activities. The last clause of Section 1 applies mutatis mutandis. 

Section 13(6) (Suspensions due to unreliability and aiding and abetting unauthorised trade activities)

A natural person who has been declared deprived, by a court judgement, of the right to exercise a trade or whose trade licence has been revoked under Section 87(1)(3) or (4), is excluded from exercising a trade if, through the exercise of this trade, the objective of the declaration of deprivation of the trade or of the revocation issued by the court judgement under Section 87(1)(3) or (4) could be thwarted. This also applies to any natural person who gave cause to the official measures pursuant to Section 91(1) or (2) due to application of the grounds for revocation under Section 87(1)(3) or (4). 

Section 13(7) (Excluded businesses)

Legal entities other than natural persons are excluded from exercising a trade if a natural person who has significant control over the operation of the business dealings of the legal entity concerned, pursuant to Section 1 to 3, 5 or 6, is excluded from exercising the trade. If a ground for exclusion pursuant to Section 4 applies to the natural person, the legal entity concerned is only excluded from exercising a trade that involves insurance brokerage activities. The last clause of Section 1 applies mutatis mutandis. 

Section 13(8) (False statutory declarations)

Natural persons and other legal entities as natural persons whose trade licence has been revoked pursuant to Section 87(1)(3a) or in respect of whom a declaratory decision has been issued pursuant to Section 344a(1) or (3) are excluded from exercising a trade for the duration of five years from the legal effect of the revocation of the trade licence pursuant to Section 87(1)(3a) or of the declaratory decision pursuant to Section 344a(1) or (3). This exclusion also applies to persons who, at the time that the exclusion enters into effect, have significant control over the operation of the business dealings of a legal entity other than a natural person excluded pursuant to the first sentence. Leniency pursuant to Section 26 may not be granted over this exclusion.