Darlehens- und Kreditvertragsgebühr

The 2011 law accompanying the budget (Budgetbegleitgesetz 2011) abolishes stamp duty on loan and credit agreements with effect from 01.01.2011. Previously, with regard to the principle of documents incurring legal fees, loan and credit agreements could be concluded in particular by mere verbal agreement, by way of legal correspondence or by implied acceptance based on a written offer. In order to ensure legal certainty for loan and credit agreements concluded in this manner before 01.01.2011, a declarative certificate for the transactions can be created free of charge as a result of the amendment to the Gebührengesetz (Austrian Fees and Duties Act).

As the deadline date referred to in the commencement of the obligation to pay fees and not the conclusion of the transactions is taken into consideration, such declarative certificates are not subject to the transaction fee. Also hedging and performance transactions (guarantees, mortgage debentures and assignments) on loan and credit transactions were excluded from the fee obligation by the amendment of the general exemption contained in section 20(5) of the Gebührengesetz irrespective of when, between which contracting parties and to what extent the hedge transaction is completed. In relation to hedging and performance transactions it is important to note that, in contrast to the abolition of the transaction fee for loan and credit agreements themselves, the entry into force of the general exemption contained in section 20(5) of the Gebührengesetz takes the actual circumstances instead of the commencement of the obligation to pay fees into account.

For this reason it is thus assumed that the subsequent establishment of the declarative certificate for hedging and performance transactions completed before 01.01.2011 will cause a transaction fee if the conditions for the fee exemption of section 20(5) of the Gebührengesetz were not met at the completion of the hedging and performance transactions prior to the Budgetbegleitgesetz 2011.
So once one renounces the certification of the hedging and performance transactions due to legal fee considerations, the subsequent establishment of a declarative certificate would trigger an obligation to pay fees.