Schoenherr

Zagreb

Schoenherr is a leading full service law firm in Central and Eastern Europe. About 300 professionals service national and international clients from our offices in Austria, Belgium/EU, and throughout the entire CEE region. Operating in a rapidly evolving environment, we are a dynamic and innovative firm with an effective blend of experienced lawyers and young talent. As one of the first international law firms to move into CEE, we have grown to be one of the largest firms in the region. Our offices and country desks provide comprehensive coverage of CEE, allowing us to offer solutions that perfectly fit the given industry, jurisdiction and company. Schoenherr is in compliance with the respective local legal standards and conduct rules in all countries; therefore, the local firm name may vary from jurisdiction to jurisdiction.

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Updates

Company & Commercial

EU Directive 2017/828 – cornerstone of increased shareholder engagement?
European Union | November 27 2017

EU Directive 2017/828, amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, was recently published. The directive provides several options for member states when transposing the directive into national law. Depending on how the respective national legislature make use of these options, there will be minor or major changes to the national law.

Beneficial Ownership Register to be introduced in Austria
Austria | September 04 2017

Parliament recently passed a new law on the registration of beneficial owners of Austrian legal entities. After obtaining the necessary approval of the Austrian federal states, the law is expected to enter into force on January 15 2018. In disclosing the relevant information on beneficial owners, the register aims to detect and prevent money laundering, especially with regard to complex corporate structures, holding companies or private foundations and trusts.

Participation rights as alternative investment and equity financing instruments
Austria | June 05 2017

The typical way to invest in an Austrian company is by way of a capital increase. However, there are formalities with respect to limited liability companies (LLCs) – the most popular legal form in Austria – that sometimes make investing in LLCs unattractive or burdensome. To eliminate the concerns associated with these transactions, Austrian law provides a suitable, but widely unknown, alternative investment instrument: participation rights.

Simplified procedure for foundation of standard LLCs
Austria | May 29 2017

The Austrian Parliament recently passed an amendment to the law on limited liability companies (LLCs) aimed at simplifying the foundation of a special kind of LLC. The purpose of the changes – and the simplifications associated with them – have been hotly debated.

Further clarification on apparent authority
Austria | March 20 2017

In a recent decision the Supreme Court held, in line with prior case law, that apparent authority requires the circumstances on which the assumption of authority is based to be induced by the principal, not by the representative. Although this is not new, the verdict has helped to clarify the boundaries of apparent authority. Certain key requirements must be met in order to establish apparent authority and thus allow the counterparty to rely on it.

Boost your start-up with an advisory board – points to consider
Austria | March 13 2017

Most start-ups are founded by first-time founders directly after graduation, with the founding team typically consisting of no more than two members. Because of this, founders are often unequipped to deal with the business challenges that they will face. Founders thus often make mistakes, especially at the start. Having an advisory board with qualified and trusted members can help a start­-up to transform its potential into successes and create a foundation for sustainable development.

No-assignment clauses in Austrian contracts
Austria | December 19 2016

The rationale behind no-assignment clauses is that they allow the rights, claims and receivables to remain with the parties that have negotiated and executed the underlying agreement, rather than allowing a counterparty to sell or otherwise transfer its claims to an unrelated party. In order to be effective, a no-assignment clause must have been expressly negotiated and agreed and, with due consideration of all circumstances, must not grossly disadvantage the creditor.

Brexit: consequences for Austrian limited companies
Austria | September 12 2016

While there is substantial uncertainty surrounding the consequences of Brexit, it can be assumed that it will have far-reaching consequences for limited companies registered on the Austrian Commercial Register. In particular, the freedom of establishment principle will no longer apply to relationships between Austria and the United Kingdom, which will have a significant effect on existing limited companies in Austria.

Civil Code amendment considers special nature of shareholder agreements
Austria | August 08 2016

The legislature recently responded to criticism regarding the 2014 amendment to the Civil Code by considering the special purpose of shareholder agreements and their qualification as undisclosed partnerships. The latest version of the Civil Code now includes an exemption for undisclosed partnerships. All shareholder agreements may once again contain a waiver of ordinary termination rights in line with common practice and the typical goals of these agreements.

Management and supervisory board liability under new business judgement rule
Austria | June 13 2016

Modelled on the German Stock Corporation Act, a 2015 reform of the Austrian Criminal Code introduced a business judgement rule into the Austrian Stock Corporation Act and the Limited Liability Companies Act. The rule applies to management and supervisory board members and will change boards' decision-making processes – in particular, for complex, risky, far-reaching, resource-consuming and strategically important matters.

Consequences of Civil Code amendment for termination of shareholder agreements
Austria | April 18 2016

A recent amendment to the Civil Code will have a dramatic effect on shareholder agreements, as shareholders of a company established for an indefinite term can no longer waive ordinary termination rights. As any party to a civil law partnership can now terminate the partnership, parties should either conclude a termination waiver for a fixed period or conclude the agreement for a fixed period (with renewal options).

Start-ups – common legal issues
Austria | June 08 2015

Austria recently experienced a significant boom in its start-up sector and has since produced some major international players. That said, starting a business in Austria requires an understanding of the legal system, including common legal risks (eg, founder and shareholder liability), the requirements for founding a limited liability company, adhering to arm's-length principles and establishing exit scenarios.

Agreements on shareholder contributions are not subject to formal requirements
Austria | March 02 2015

The Supreme Court recently held that agreements between shareholders on voluntary capital contributions to a company may be agreed outside the articles of association and are subject to no formal requirements. The decision ensures that shareholders of stock corporations and limited liability companies have flexibility when agreeing on capital contributions outside the articles of association.

Compliance management systems – Austrian standard and ISO guideline compared
Austria | January 19 2015

Compliance presents many challenges for organisations. So far, compliance has not met the global standards which provide guidance on the implementation of compliance management systems (CMSs). In 2013 the Austrian Standards Institute released its own CMS standard, which provides guidance on the implementation of CMSs. This update compares the Austrian standard with the 2014 International Standardisation Organisation guideline.

Validity of payment of cash consideration to public limited liability company
Austria | June 09 2014

The Supreme Court recently considered the validity of the payment of a cash consideration to a public limited liability company in the course of an increase in its stated capital. The ruling highlights that business transactions that have a substantive and temporal connection with a formal increase of the stated capital must be made under the disclosure and examination rules for contributions in kind.

Reductions in minimum share capital for limited liability companies abolished
Austria | March 31 2014

Amendments to Austria's federal tax law – which, among other things, have revised the Limited Liability Companies Act – recently came into force. The minimum share capital of a limited liability company (GmbH) has been raised again to the former level of €35,000. Out of the share capital to be contributed in cash, at least €17,500 must once again be paid in when founding the GmbH.

Non-participating shareholders may not rely on attendance quorums
Austria | January 20 2014

Pursuant to a recent Supreme Court decision, which confirms and clarifies earlier rulings, shareholders of an Austrian limited liability company that did not participate in a shareholders' meeting may not challenge shareholders' resolutions approved in such meeting on the grounds that attendance quorum requirements for holding a shareholders' meeting were not met.

New legislation increases opportunities for piercing corporate veil
Austria | September 16 2013

The Insolvency Act has recently been amended to provide for an obligation on majority shareholders of insolvent Austrian or foreign capital companies to file for insolvency if the company no longer has at least one managing director. Non-compliance will result in the direct liability of the majority shareholder towards the company's creditors. The amendment thereby introduces a statutory basis for piercing the corporate veil.

Handle with care! Indirect shareholder contributions in corporate reorganisations
Austria | May 28 2013

Considering the strict view taken by the tax courts in recent decisions regarding the capital contribution tax on indirect shareholder contributions effected before or during reorganisations, corporations would be well advised to take a cautious approach. To reduce the tax risk, solid commercial arguments that substantiate a predominant interest of the contributing indirect shareholder should be adequately recorded.

Court finds no need for 'adequate issue price' in capital increase case
Austria | May 13 2013

The Supreme Court recently considered how a minority shareholder should react if the majority shareholder overrules it on a capital increase resolution that subsequently leads to the dilution of its holding. Under Supreme Court case law, (minority) shareholders are protected against a dilution of their participation following a capital increase if their statutory subscription rights are excluded.

New law will make establishing limited liability companies easier and cheaper
Austria | May 07 2013

A draft of the new act amending the company laws was recently revealed. The act aims to facilitate the establishment of an Austrian limited liability company by making the process easier and cheaper. Among other things, the minimum share capital, and consequently the minimum corporate income tax and the attendant attorney and notary fees, will be reduced.

Crisis management: shareholders' duty to contribute to financial recovery
Austria | April 15 2013

When a capital company is in financial crisis, its shareholders often do not agree on the measures, if any, that should be taken to remedy the company's financial situation. The Supreme Court recently examined the question of whether, and to what extent, a shareholder may be obliged to contribute additional capital to a company in order to support the company's financial recovery.

Appointment of responsible representatives: handle with care!
Austria | January 28 2013

The shift of liability from the officers and directors entitled to represent a company to so-called 'responsible representatives' aims to protect senior executives from liability for breaches of public law provisions at their company. However, if such representatives are not appointed in compliance with the law, supposedly protected senior executives may be shocked to find that they remain liable.

Co-shareholder's interests must be upheld when calling general meetings
Austria | November 26 2012

Shareholders of Austrian limited liability companies are subject to general fiduciary duties with respect to the company and their co-shareholders. Considering the consequences of passing shareholders' resolutions in violation of general shareholder duties, the Supreme Court recently confirmed that the arrangements for a general meeting must be determined with due regard to the other shareholders.

Conflict of interest may justify immediate recall as board member
Austria | September 24 2012

Members of the management board of an Austrian stock corporation are appointed for a definite period and may be recalled before the expiration of their tenure only for cause. The Supreme Court recently took the opportunity to confirm and outline a number of criteria in connection with the recall for cause of a board member. The court held that behaviour constituting grave misconduct must be verified on a case-by-case basis.

Second Stability Act 2012 improves corporate governance
Austria | July 23 2012

The Second Stability Act amends the Stock Corporation Act and the Commercial Code. The most significant provisions include changes to the calculation of managing directors' remuneration, the introduction of a cooling-off period for former management board members following their departure and amendments to the composition of supervisory boards.

Amendment to disclosure of stock listings and web addresses
Austria | April 23 2012

Following the introduction of the Company Law Amendment Act 2011, Section 5(4b) of the Companies Register Act has been amended. As a consequence, the fact that a company is listed on a regulated market must be registered in the Companies Register. In addition, listed stock corporations must register the address of their website in the register.

Supreme Court affirms objective interpretation of articles of association
Austria | February 13 2012

In a recent case concerning the interpretation of the articles of association of Austrian limited liability companies, the Supreme Court held that provisions which govern "necessarily corporate organisational rules" must be interpreted "objectively". This means that the pure wording of the articles is relevant, irrespective of the intent of the parties or an ancillary agreement concluded outside the articles.

Constitutional Court lifts thresholds for shareholder review rights
Austria | December 05 2011

The Constitutional Court recently lifted a threshold set forth in the Stock Corporation Act that limited the right of shareholders to review the share exchange ratio determined or the cash compensation, if any, paid in the course of a merger, if either of these were inadequate. The court sided with the shareholders, stating that an inadequately determined share exchange ratio violated constitutional law.

Court rules on invalidity due to poor knowledge of German language
Austria | October 31 2011

According to Section 63(1) of the Notaries Code, when drawing up a notarial deed, a party whose language capabilities are insufficient to understand the document and its consequences fully must be assisted by a sworn and court-certified translator. The Supreme Court recently ruled on the circumstances under which a party is assumed to have sufficient knowledge of the German language.

Acceptance of supervisory board mandate not always appropriate
Austria | July 11 2011

A well-known former Austrian politician recently stepped down from his supervisory board seat at a major Austrian stock company. A few days later, it became known that he had been elected chairman of the supervisory board of another Austrian stock company. As both companies were intense rivals, this turn of events was met with fierce criticism.

Mandatory switch to registered shares for non-listed companies
Austria | May 31 2011

Under a proposed amendment to the Stock Corporation Act, stock corporations whose shares are not traded on a stock exchange will no longer be able to issue bearer shares. It will be mandatory for closely held stock corporations to issue registered shares and to keep an up-to-date share ledger. In addition, companies will be required to keep a record of the bank account details of each shareholder.

Articles amendment introducing pre-emption rights: no need for notarial deed form
Austria | February 28 2011

Pursuant to Section 76 of the Act on Limited Liability Companies, on formation of a limited liability company, the articles of association must be drawn up in the form of a notarial deed. Thus, in the past the Supreme Court has consistently held that an amendment of the articles which introduces pre-emption rights must also be drawn up in the form of a notarial deed. However, the court recently overruled its past position.

Filing of annual accounts - stricter enforcement and immediate penalties
Austria | January 31 2011

With effect from January 1 2011, the enforcement process for the timely disclosure of annual accounts has been tightened considerably. In case of late filing of statutory accounts, a first penalty will be automatically imposed on expiry of the filing deadline. Subsequent automatic follow-up penalties will be imposed every two months until the annual accounts have been filed with the Companies Register.

Clause linking board member's employment to corporate function permissible
Austria | August 31 2010

In a recent decision the Supreme Court was called upon to determine the permissibility of a clause in the employment contract of a management board member of an Austrian stock corporation which set forth that the (employment) contract would terminate automatically upon a recall of the board member from his corporate function.

Disclosure of Major Shareholdings and the Stock Corporation Act
Austria | December 21 2009

A recent major reform of the Stock Corporation Act has implemented the EU Shareholders' Rights Directive. A new provision in Section 124 of the act states that a company's articles of association may provide for the suspension - in whole or in part - of a shareholder's voting rights in case of non-compliance with statutory or stock exchange shareholder disclosure rules.

Planned limited liability company reform announced
Austria | December 14 2009

At a recent press conference Chamber of Commerce President Christoph Leitl and Minister of Justice Claudia Bandion-Ortner presented cornerstones for a planned 2010 reform of the Austrian limited liability company. The reform is at an early stage and the full details of the proposal are yet to be made public; however, the goal appears to be to simplify the formation process and reduce the associated costs.

New Rules Governing Share Registers Introduced
Austria | September 01 2009

The Stock Corporation Amendment Act 2009 has not only brought about important changes to the provisions governing the shareholders' meetings of Austrian stock corporations, but also introduced new rules governing share registers, which must be kept by all stock corporations that have issued registered shares. The new act introduces a procedure that allows a company to seek the deletion of an entry in the share register.

New Act Facilitates Foreign Shareholder Participation in Shareholders' Meetings
Austria | August 03 2009

The EU Shareholder Rights Directive was recently implemented into Austrian law by the Stock Corporation Amendment Act 2009. The act introduces new rules that are applicable to Austrian listed corporations. The rules are aimed at facilitating (foreign) shareholder participation and voting in shareholders' meetings, and thus increasing free float shareholder participations.

Supreme Court Rules on Automatic Accession of Shareholders
Austria | June 08 2009

In a recent case before the Supreme Court a provision in a limited liability company's articles of association was disputed. The provision set forth that in case of the opening of insolvency proceedings or the initiation of an enforcement action against a shareholder, such shareholder would automatically cease to be a shareholder and its share would transfer to the co-shareholder(s) by way of automatic accession.

Supreme Court Rules in Golden Handshake Case
Austria | March 09 2009

In a recent decision the Supreme Court had to deal with the issue of whether two golden handshakes, which had been handed out to (former) members of a listed company's management board to achieve an early termination of their management contracts, were unjustifiably high.

Proposal to Implement EU Directive on Shareholders’ Rights
Austria | December 15 2008

The proposal for the implementation of the EU Directive on Shareholders’ Rights is intended to enter into force in 2009. The proposal introduces considerable modernizations to the Stock Corporation Act, including removing obstacles to electronic participation and abolishing share blocking.

Amendments to Auditing and Corporate Governance Regulations
Austria | May 27 2008

In the course of implementing EU Directives 2006/43/EC and 2006/46/EC, a number of changes will be made to the Austrian regulations governing the auditing of annual financial statements and the corporate governance regime. In addition, disclosure requirements will be increased. This update summarizes some of the key changes.

Fifty-Fifty Shareholder Structures and Deadlock Situations
Austria | October 22 2007

Fifty-fifty shareholder structures entail the risk of deadlock situations. Unless a dispute resolution mechanism kicks in, the conduct of the management can be of crucial importance in such a situation if the dispute relates to a matter within the managing directors' competence or control.

Scope of Directors' Liability in Insolvency Extended to New Shareholders
Austria | August 13 2007

In a recent decision the Supreme Court held that the managing director of a private limited liability company can be held liable by a new shareholder that acceded to the company in the course of a capital increase if the company later becomes insolvent. The decision confirms that Section 69/2 of the Insolvency Act covers not only the existing creditors and shareholders of a company, but also new shareholders.

Enterprising Changes: Reform of the Commercial Code
Austria | January 08 2007

A comprehensive modernization of the Commercial Code has come into force. The new code introduces the concept of an 'entrepreneur' and is applicable to all persons operating an enterprise as defined by the amended code. It defines an 'enterprise' as an independent economic activity intended to be performed permanently in an organized manner.

New Rules on Company Names
Austria | October 09 2006

A comprehensive modernization of Austrian company and commercial law will include changes to the creation and use of company names in the Commercial Register. The applicable rules will be liberalized, simplified and uniformly regulated in the Commercial Code.

New Companies Act Aims to Strengthen Economic Confidence
Austria | August 07 2006

On January 1 2006 the Companies Act 2005, which amended the provisions of the Companies Act for corporations and the Companies Act for limited liability companies, came into force. With this new law the Austrian legislature intends to strengthen confidence in the Austrian economy and the Austrian capital market.

Extension of Transactions Requiring Approval of Supervisory Board
Austria | April 10 2006

On January 1 2006 the Companies Act 2005 came into force, amending the provisions of the existing Companies Acts for corporations and limited liability companies. Among other amendments, the new act has extended the catalogue of transactions that require the prior approval of the supervisory board.

New Corporate Criminal Liability Act
Austria | February 13 2006

On January 1 2006 the Corporate Criminal Liability Act came into force. Under the new act, organizations are criminally responsible for the conduct of individuals who may act on their behalf. Organizations that are held responsible for an offence are liable to be fined.

Amendments to Company Law Aim to Improve Governance and Auditing
Austria | November 07 2005

On June 8 2005 the Austrian Parliament passed the Company Law Amendment Act 2005, which will come into force on January 1 2006. The amendments to the current law aim in particular to improve corporate governance and the quality of annual audits.

Corporate Governance Code Amended
Austria | August 15 2005

At the beginning of 2005 the working group for the Corporate Governance Code passed a resolution amending some of the code's provisions. These changes became necessary after several amendments to the Stock Exchange Act and the Act Amending the Accounting Law 2004 came into force on January 1 2005.

Suspension of Member of the Board of Directors
Austria | May 23 2005

The Supreme Court has issued its first ruling in a case concerning the suspension of a member of the board of directors of a stock company. The board member was suspended following a number of disputes with the chairman of the supervisory board, and after refusing to attend several working meetings.

Changes to the Stock Corporation Act
Austria | February 14 2005

One-person stock corporations can now be established following recent amendments to the Stock Corporation Act. The same procedures are used to do this as apply to a multi-person formation. The amendments also affect the voting process for the supervisory board and the calling, recording and broadcasting of shareholders meetings.

Supreme Court Rules on Hidden Contributions and Disguised Dividends
Austria | September 20 2004

The Supreme Court has handed down a significant decision regarding hidden contributions in kind and hidden profit distribution. This decision is the second to deal with the matter and falls in line with its 2000 predecessor.

New Act Regulates Creditor Shareholders
Austria | March 15 2004

Following a six-year legislative process, the Parliament has finally enacted the Substitution of Equity Act. The act entered into force on January 1 2004. The granting of loans is defined broadly under the new act to include any type of contribution in respect of which consideration is given. The consideration must not qualify as a bridge loan.

Standards of Due Diligence and Liability of Supervisory Board Members
Austria | March 24 2003

The Supreme Court has handed down a significant decision regarding the liability and duties of supervisory board members. In the case, members of the supervisory board escaped liability because it could not be proved that their omissions had adversely affected the company.

Parliament Implements Directive on Combatting Late Payment
Austria | January 20 2003

The Interest Law Amendment Act implements Directive 2000/35/EC of the European Parliament and the Council on Combatting Late Payment in Commercial Transactions and introduces significant changes to the rules concerning statutory interest for late payment in Austria.

Working Group Issues New Corporate Governance Code
Austria | December 02 2002

The new Austrian Code of Corporate Governance is expected to increase transparency of listed companies and result in tighter financial and corporate control, as well as raising awareness of the need for company shareholders to be informed of developments that might affect them.

Competition & Antitrust

Competition Authority publishes information paper on dawn raids
Czech Republic | December 14 2017

The Czech Competition Authority (CCA) recently published an information paper on dawn raids during its annual competition law conference. The paper aims to provide guidance explaining the powers and privileges of CCA officials in the course of a dawn raid and a brief overview of the case law relating to dawn raids, focusing on judicial review of the legality of dawn raids carried out after the European Court of Human Rights' judgment in Delta Pekárny.

New Competition Act expected in 2018
Bosnia and Herzegovina | December 14 2017

The Competition Council of Bosnia and Herzegovina recently set out its objectives and priorities for 2018 in its 2018 Work Programme. One of the council's medium-term objectives is to make market regulation more efficient with the aim of strengthening competition protection. The council has also stressed its dedication to improving its expertise and administrative capacity.

HCA uses new investigative tool under merger control regime
Hungary | November 30 2017

The Hungarian Competition Authority (HCA) was recently given significant new investigative powers under the framework of its merger control duties. Should parties decide not to submit a voluntary filing when meeting the voluntary notification threshold, the HCA can initiate an investigation on its own accord and undertake a fully fledged merger control proceeding. The HCA recently announced that it has commenced its first such ex officio merger control investigation.

Competition Commission sends statements of objection for abuse of dominant position
Bulgaria | November 02 2017

The Competition Commission recently sent statements of objection for abuse of dominant position by three electricity distribution and supply companies. According to the commission, allegations were made that the companies had traded information regarding customers switching from the regulated market to the liberal market in order to purposely stall the necessary paperwork.

Competition Commission fines Sofia Commodity Exchange for unfair competition
Bulgaria | October 26 2017

A recent competition breach by the Sofia Commodity Exchange AD resulted in a 0% fee for purchasers (ie, members of the exchange). The Supreme Administrative Court and the Competition Commission both held that the lack of fees had placed purchasers in a more favourable position, leading to unfair competition which contradicted good-faith practices. In addition to a fine based on the net turnover of sales, the commission ordered the immediate suspension of the exchange's breaching activities.

Competition Authority begins work on new Competition Act and block regulations
Serbia | October 19 2017

The Competition Authority, together with the Ministry for Trade, Tourism and Telecommunications, recently lodged an initiative for the new Competition Act, which will replace the Competition Act 2009. The goal is to harmonise the new act with EU rules while observing the specific demands of the Serbian market. Once the draft is ready, it will be presented for public debate. Further, the authority has issued three draft block regulations for public review and comment.

Competition authority adopts new approach to gathering electronic evidence during dawn raids
Poland | October 12 2017

The Warsaw Court of Competition and Consumer Protection recently delivered a significant judgment regarding the collection of electronic evidence during unannounced inspections conducted by the Office for Competition and Consumer Protection. As a result, documents stored on hard drives and emails of managers and employees must now be reviewed by officials on the inspected company's premises.

Competition Authority to monitor mobile phone retail market
Albania | October 12 2017

In September 2017 the Competition Authority officially closed the investigation into the mobile phone retail market which it opened following three complaints regarding alleged coordinated practices and potential abuse of dominant position. The authority issued a number of recommendations and intends to continue to monitor the mobile phone retail market until October 2018.

Competition Authority imposes first fine for pre-implementation
Serbia | October 05 2017

The Competition Authority recently launched ex officio proceedings to investigate an acquisition of sole control by Prointer IT Solutions and Services doo over Alti doo. The investigation revealed that the concentration had been carried out without merger control clearance, leading the authority to fine Prointer din6.7 million.

At a glance: Competition Authority activities in 2016
Montenegro | September 21 2017

The Competition Authority issued 28 merger control clearance decisions in 2016, conducted one dawn raid and implemented no fines. The authority has announced that, with the help of the EU Delegation to Montenegro, it plans to purchase forensic software and technical equipment in 2018 which will allow it to continue its investigation activities.

New law implementing EU Damages Directive
Czech Republic | September 14 2017

With the introduction of the Damages Act, the Czech Republic has finally implemented the EU Damages Directive, which establishes common EU rights for cartel victims seeking damages. The Damages Act introduces many novelties into national law, which aim to improve the procedural status of citizens and businesses that claim compensation before the national courts for damages caused by an infringement of EU or national antitrust rules.

Automotive industry again under scrutiny by Competition Protection Agency
Slovenia | August 31 2017

The Competition Protection Agency recently opened an antitrust proceeding against Renault. According to the agency, there are grounds to believe that Renault abused its dominant position on the market for the provision of technical information and technical training to authorised and independent mechanics of its vehicles. Considering that only one year has passed since the agency initiated proceedings against Hyundai Avto Trade doo, the automotive industry appears to be under scrutiny.

Legality of large retail chains' use of rebates remains dubious
Hungary | August 24 2017

Following a Hungarian Competition Authority (HCA) decision that its rebate system violated the Trade Act, retail chain Spar went all the way to the Supreme Court. All judicial forums upheld the HCA's decision and the illegality of such rebates seemed to be settled. However, the Budapest Metropolitan Court recently overturned another HCA decision, which was somewhat surprising considering that the Supreme Court had already upheld the HCA's decision in the relatively similar Spar.

CPC opinion on draft act for amendment of Administrative Procedure Code
Bulgaria | August 17 2017

The Commission for the Protection of Competition (CPC) recently adopted an opinion on the draft act for the amendment of the Administrative Procedure Code. The CPC supports the introduction of electronic justice which, in its view, will increase the efficiency of the judiciary system and prevent unnecessary delays. However, it disagrees with the increase in state fees and the proposal that the state fee for cassation is to be defined as a percentage of the imposed penalty.

Competition Authority investigates mobile phone retail market
Albania | August 10 2017

The Competition Authority recently initiated an investigation into the mobile phone market in connection with alleged coordinated practices and potential abuse of the dominant position of the market players. It had been alleged that three telecommunications operators had coordinated a change in standard pre-paid packages.

Competition Authority's 2016 activities
Albania | August 03 2017

In 2016 the Competition Authority issued 52 decisions relating to merger control, abuse of dominance and restrictive practices. No fines were imposed in any of the decisions. The authority also reviewed and commented on numerous legislation proposals, including the production and marketing of tobacco and cigarettes and airport fees.

Competition Authority activities in 2016
Serbia | July 27 2017

During 2016 the Competition Authority issued 111 merger control decisions. Most of the notifying parties involved were foreign companies, while notifications filed by domestic companies made up approximately 24% of all filed notifications. The Competition Authority, which proved to be one of the busiest in the region, also conducted a number of sector inquiries.

New Competition Council members appointed
Bosnia and Herzegovina | July 20 2017

The process for appointing new Competition Council members is now complete and operational. Specific and complex rules exist for the composition of the council and for it to pass decisions. Among other things, there must be two members representing each of the three constituent ethnic groups of Bosnia and Herzegovina (ie, two Serbs, two Bosnians and two Croatians).

Competition authority fines two breweries €8.5 million
Macedonia | July 13 2017

The Commission for the Protection of Competition recently determined that two breweries were engaged in resale price maintenance. The breweries had entered into agreements that contained price-fixing provisions and distributors were allegedly restricted from independently determining resale prices.

Competition Authority fines manufacturers of edible sunflower oil
Serbia | July 06 2017

The Competition Authority recently determined that two edible sunflower oil market competitors (Vital and Victoriaoil) had concluded a restrictive agreement that limited the production of edible oil and inhibited competition on the market. The authority imposed a fine of 0.33% of the total annual turnover generated in 2014 on the Serbian market. This was the first production cooperation agreement analysed by the authority.

HCA steps up against bid rigging in public procurement
Hungary | July 06 2017

Public procurements are often targets for bid rigging and the Hungarian authorities and legislature have made extra efforts to fight this kind of behaviour. While it is not the primary authority for monitoring public procurements, the Hungarian Competition Authority (HCA) is one authority fighting anti-competitive behaviour in public procurement. Besides investigating violations, the HCA is also taking steps towards prevention and raising awareness.

Competition Authority activities in 2016
Montenegro | June 29 2017

In 2016 the Competition Authority received 33 merger control notifications and issued 28 decisions. Most of the concentrations were in the telecommunications, media and pharmaceutical sectors. There was a slight decrease of approximately 6% in the number of merger control notifications submitted in 2016 in comparison to 2015.

Competition authority receives honourable mention in Competition Advocacy Contest
Serbia | June 22 2017

The Commission for the Protection of Competition was the 2017 recipient of an honourable mention at the 2016-2017 Competition Advocacy Contest: Innovative Advocacy Strategies to Address Market Challenges. The article which brought the commission this recognition deals with implementing competition advocacy in government policymaking.

Retail market on competition authority's radar
Serbia | June 15 2017

The Commission for the Protection of Competition recently adopted a decision to conduct a retail market study. The study will help to determine the relations between competitors on the retail market at the local, regional and national level. The study is also designed to encompass the wholesale market. The market study results will enable the commission to conduct an ex post assessment of the major concentrations that were carried out in the previous period.

Parliament adopts Act on Private Enforcement of Competition Law
Poland | June 15 2017

Parliament recently adopted the Act on Private Enforcement of Competition Law, which transposes the EU Antitrust Damages Directive into Polish law. The act aims to enhance the enforcement of the payment of compensation by companies that have infringed competition rules. The introduction of legal presumptions shifting the burden of proof onto the infringer and specific rules on the disclosure of evidence are steps in this direction.

Competition authority imposes conditions on digital distribution retail market concentration
Serbia | June 08 2017

The Commission for the Protection of Competition conditionally cleared the concentration brought about by Serbia Broadband's acquisition of Interaktivne kablovske objedinjene mreže. During the investigation, the commission obtained all of the necessary data, information and opinions on the effects of the concentration from the parties' competitors, broadcasters and independent regulatory bodies responsible for the data relevant to the proceedings.

Competition Authority conducts dawn raid
Montenegro | June 01 2017

The Competition Authority recently conducted a dawn raid at the premises of Sava Trans doo in Cetinje to collect the data required for it to proceed with a case. Throughout the raid, authority officials acted in compliance with legislation and Sava Trans maintained a high level of cooperation.

Remedies imposed on fuel companies following cartel investigations
Bulgaria | May 25 2017

For the second time in less than five years the Commission for the Protection of Competition has opened investigation proceedings regarding prohibited agreements and concerted practices against the major fuel companies in Bulgaria and closed them without issuing penalties. An investigation was launched and the commission found that the retail price of some petrol companies in Bulgaria does not always follow the wholesale price and producers' prices.

OnDemand: Competition and antitrust in the digital age
Hungary | May 25 2017

In recent years, the digital market has expanded rapidly in Hungary in almost every sector. Numerous companies (eg, Uber and AirBnb) have entered the Hungarian market and significantly changed the landscape of entire sectors with their innovative services. The possible competition law issues concern the fact that these new innovative companies can quickly achieve a dominant position. Further, in some sectors, online platforms used by third parties can restrict competition between users.

Implementation of EU Antitrust Damages Directive
Hungary | May 18 2017

An important part of the recent major amendment to the Competition Act was the timely implementation of the EU Antitrust Damages Directive into Hungarian law. While it was already possible to claim damages for a competition law infringement under Hungarian law, the directive's implementation introduced special rules for damages claims arising out of competition law infringement and the enforcement of such claims. It also introduced several solutions which are new to Hungarian law.

OnDemand: Competition and antitrust in the digital age
Poland | May 11 2017

The fact that more goods than ever are now traded online has meant that the Office for Competition and Consumer Protection has in recent years examined a number of cases regarding online distribution. However, the number of cases regarding the e-commerce sector which have ended with a formal decision has been limited and there have been no high-profile cases.

OnDemand: Competition and antitrust in the digital age
Czech Republic | April 20 2017

While the advance of the digital economy and the growth of e-commerce affects competition in the Czech Republic, the Office for the Protection of Competition has not yet developed a special strategy or coherent decision-making practice with respect to the specific issues relating to digital markets. That said, the office has issued several decisions regarding competition in online markets – in particular, regarding mergers between e-shop operators and e-shop resale price maintenance arrangements.

OnDemand: Competition and antitrust in the digital age
Slovenia | April 13 2017

The rapidly changing digital market has certainly had a significant impact on online and traditional sales channels in Slovenia; however, studies show that the number of online purchases is still below the EU average. The most common barriers which limit or prevent enterprises from partaking in online sales are connected with products being unsuitable for online sale, problems regarding logistics and problems associated with the cost of introducing web sales.

Effective ways to approach new merger control regime
Hungary | March 23 2017

Recent amendments to the Competition Act have significantly revised the merger control threshold system. The turnover thresholds for triggering a filing obligation have been increased. In addition, a voluntary threshold has been introduced, effectively transposing the voluntary notification system into Hungarian competition law for transactions where the mandatory thresholds are not met, but the parties have achieved a combined turnover in Hungary of more than Ft5 billion.

OnDemand: Competition and antitrust in the digital age
Bulgaria | March 23 2017

Online and digital services are well represented in Bulgaria. However, no changes to the Competition Protection Act have been implemented or proposed as a result of the growth of the digital market, and no separate rules about online services have been issued or proposed by the Commission for Protection of Competition. Nonetheless, the development of digital services has led to changes in the Consumer Protection Act, meaning that there are specific rules regarding online sales and services.

Competition authority announces intention to change issuance of opinions
Serbia | March 02 2017

The Commission for the Protection of Competition recently announced that after 10 years in operation, it believes that it is time to introduce changes to its existing practice of issuing opinions on request by market participants. The commission will now focus on matters relevant to the implementation of regulations that either were never explored or require additional clarification due to the changes that have since occurred.

Competition Council: 2016 at a glance
Bosnia and Herzegovina | February 23 2017

The Competition Council's main activities in 2016 included issuing opinions and conducting proceedings pursuant to requests filed by undertakings or ex officio. A total of 50% of the cases filed were processed in 2016, while the remaining cases have been carried over to 2017. The council's total income from administrative fees in 2016 was KM234,574 (approximately €115,000), while collected fines reached KM624,492 (approximately €610,000).

OCCP imposes fine for resale price maintenance agreement
Poland | February 16 2017

The Office for Competition and Consumer Protection (OCCP) recently issued a decision in which it concluded that wholesale supplier Fordex and sports retailer Intersport had entered into an anti-competitive agreement and violated Article 6 of the Competition Act. The OCCP's decision stressed that price agreements (even vertical ones) are serious infringements of competition law to which neither the de minimis rule nor the block exemption regulations can be applied.

Competition Commission analyses insurance market
Serbia | February 16 2017

The Competition Commission recently conducted a competition assessment of the Serbian insurance market between 2012 and 2015. The main objective of the assessment is to determine the market structure and the relationships between the largest competitors, as well as to detect market weaknesses that may ultimately result in competition infringement.

Abuse of stronger bargaining power
Bulgaria | February 16 2017

The Competition Protection Commission recently fined Kaufland Bulgaria EOOD for abuse of stronger bargaining power regarding its supplier, Keti-94 OOD. This is the second commission decision relating to abuse of bargaining power – a concept introduced into Bulgarian legislation in July 2015. The commission found Kaufland's breach to be severe and imposed a 7% fine generated from Kaufland's turnover on the market for sales of low-priced alcohol.

Competition Commission to focus on gas, retail and pharmaceutical industries
Serbia | February 09 2017

The president of the Competition Commission, Miloje Obradović, recently spoke at the Sub-committee on Internal Market and Competition meeting. He briefed the European Commission on all of the activities undertaken to implement the Competition Act and on the level of harmonisation of Serbian competition legislation with the acquis communautaire. Obradović emphasised that future sectoral analyses will focus on the markets that have caught the commission's attention in the past.

Competition Commission imposes fines for bid rigging
Serbia | February 02 2017

The Competition Commission recently issued a decision determining that Bora Kečić and Large Transport had engaged in bid rigging in a public tender procedure launched by public utility company Elektromreže Srbije. By entering into a restrictive agreement, these undertakings significantly restricted and distorted competition. The commission issued fines of approximately €8,000 per company.

Reduced red tape in merger control proceedings
Hungary | February 02 2017

Following the latest amendments to the Competition Act, the Hungarian Competition Authority recently published an updated filing form and new guidelines on merger control proceedings. Together with the increased merger control thresholds introduced by the amendments, the new filing form and merger control guidelines should make Hungarian merger control proceedings easier for concentrations from January 15 2017.

Anti-competitive agreements in telecoms sector
Czech Republic | February 02 2017

The Office for the Protection of Competition recently fined Czech mobile operators Vodafone Czech Republic as and O2 Czech Republic as a total of Kr99 million after it deemed an agreement on an exclusive, direct interconnection between the two operators included in a 2001 interconnection agreement to be anti-competitive. Another case in the telecoms sector which was originally initiated by the office is now under the jurisdiction of the European Commission.

Competition Commission fines public utility company €3 million for abuse of dominance
Serbia | January 26 2017

The Competition Commission recently issued a decision determining that EPS Distribucija doo Beograd – the only operator on the Serbian electricity distribution market – abused its dominant position. The company was fined €3 million and issued with behavioural remedies aimed at creating equal conditions for doing business on the market. The commission took into account EPS Distribucija's cooperation during the proceedings.

Foreign Investors Council says competition authority progress is considerable
Serbia | January 19 2017

The Foreign Investors Council recently presented the 2016 edition of the White Book – an overview of the traditional business climate in Serbia and recommendations for its improvement. The document notes considerable progress in the work of the Commission for the Protection of Competition. Key improvements include the adoption of the new Merger Notification Decree and the provision of information on the commission's work.

Competition Authority intends to conduct retail market assessment
Serbia | January 12 2017

The Competition Authority intends to conduct a competition assessment on the retail market, focusing on non-specialised stores selling mainly food, beverages and tobacco. In the past 10 years in Serbia, there has been significant consolidation of the food retail and distribution market, which has affected the commercial relationship between retailers and their suppliers. The assessment should contribute to a better understanding of this relationship and its possible effects on competition.

Competition Protection Agency's 2017 objectives
Montenegro | January 05 2017

The Competition Protection Agency recently adopted its 2017 Financial Plan, which includes strengthening administrative capacity, conducting dawn raids and preventing competition infringement. Further, the European Commission determined in its annual report that there is a need for the agency to strengthen its administrative capacity and issued a recommendation for the agency to increase the number of its employees.

Enhancement of cooperation of Western Balkan competition authorities
Montenegro | December 22 2016

A Technical Assistance and Information Exchange regional workshop on the enhancement of cooperation between Western Balkan competition authorities was recently held in Podgorica, Montenegro.The Montenegrin Competition Agency director noted that it is necessary to ensure a uniform competition law approach in the Western Balkans, mainly in order to help both foreign and regional investors feel protected against actions that could put the equality of all market participants at risk.

Commission for Protection of Competition conducts sector analysis of insurance market
Bulgaria | December 15 2016

The Commission for Protection of Competition recently conducted a sector analysis of the competition environment in Bulgaria's insurance market. The main purpose of the report was to provide insight into the insurance market and specify potential competition issues. It is expected that strategies, programmes and plans to improve the insurance environment will be adopted in the future by the relevant bodies.

Competition Authority focuses on Aftermarkets Analysis
Serbia | December 15 2016

The Competition Authority recently published the Aftermarkets Analysis, which covers warranties, repair services and the sale and use of spare parts for automotive and household appliance industries. The aim of the analysis was to determine the market structure and the relationship between leading undertakings in order to detect any shortcomings in the market. The results will be used to draft a decree on group exemption from the prohibition of vertical agreements in the motor vehicle sector.

Competition Council publishes 2017 work programme
Bosnia and Herzegovina | December 08 2016

The Competition Council aims to improve its quality system in order to comply with EU legislation and enhance competition law enforcement in Bosnia and Herzegovina. The council's recently published work programme outlines its objectives and priorities for 2017 and ensures its transparency for business and expert communities. The council has stressed that certain issues may arise in the implementation of the work programme, which may affect relevant tasks and activities.

Competition Authority introduces new bylaws
Albania | December 01 2016

The Competition Authority recently introduced a number of new bylaws. The bylaws aim to regulate short-form procedures on the assessment of concentrations, commitment procedures and the administration of electronic data during Competition Authority inspections.

No merger control for concentrations of national strategic importance
Hungary | December 01 2016

The government recently exempted the state-owned national electricity provider and an energy company from having to fulfil merger control obligations before their intended merger. According to the relevant government decree, the concentration was of national strategic importance, as it facilitated affordable energy supply for consumers. This exemption is not unprecedented under Hungarian competition law.

Competition Authority conducts dawn raid at N Sport premises
Serbia | November 17 2016

The Competition Authority recently carried out a dawn raid at the premises of N Sport and acquired copies of agreements that the company had entered into with its customers. The agreements contained provisions obliging customers and retailers to comply with minimum retail prices set by N Sport when reselling their products. The concerned undertakings are at risk of severe fines of up to 10% of the total turnover generated in 2015, while the agreements could be declared null and void.

Competition Authority activity in 2015 at a glance
Macedonia | November 03 2016

During 2015 the Competition Authority issued 68 decisions concerning merger control, the abuse of dominant positions and state aid and 32 opinions concerning competition law and state aid law. Further, the authority issued a number of significant fines in decisions relating to cartels and the abuse of dominant positions. Taking into account the available human and financial resources, the authority is satisfied with the results achieved in 2015.

Price-fixing agreement facilitated by association of undertakings
Poland | November 03 2016

The Office for Competition and Consumer Protection recently imposed a fine on the Association of Polish Centres for Infertility Treatment and Reproduction Development for entering into an anti-competitive price-fixing agreement and violating the Competition Act. The penalty reflects the fact that price-fixing agreements are regarded as serious infringements of competition law.

Competition Authority conditionally approves sugar market concentration
Serbia | October 27 2016

The Competition Authority recently adopted a decision conditionally clearing an acquisition in the sugar market in Serbia. As the resulting market share aggregation in the affected markets ranges from 60% to 80%, the Competition Authority recommended the introduction of operational requirements and restrictions to prevent any negative effects resulting from market saturation.

New information letter on amendment to Significant Market Power Act
Czech Republic | October 20 2016

While the 2016 amendment to the Significant Market Power Act sought to remove and clarify ambiguous provisions within the act and generally provide greater protection to suppliers, several provisions remained vague and were thus open to interpretation. As such, the Office for the Protection of Competition recently issued an information letter to clarify and explain the changes introduced by the amendment.

Competition Authority investigates tobacco industry
Albania | October 20 2016

The Competition Authority recently initiated ex officio proceedings against MIKA KORÇA JSC. MIKA KORÇA holds a dominant position on the tobacco market as the sole Albanian company exporting tobacco products and the only purchaser of tobacco from farmers. The authority has established that the prices at which farmers sell tobacco does not cover their high production costs, and that the average price paid by MIKA KORÇA is lower than the average price paid in the European Union.

Competition Authority operational after three years
Kosovo | October 13 2016

After three years of hiccups, Competition Authority members have been selected and are ready to assume their positions and begin work. Due to the lack of a decision-making body, no decisions have been issued or investigations conducted by the authority since 2013. The authority is one of the youngest of its kind in the region and thus has a significant lack of practice providing guidance on how competition rules should be implemented.

Rules on filing merger control notification based on letter of intent clarified
Serbia | October 06 2016

The Competition Authority recently published a statement clarifying the rules on submitting a merger notification based on the serious intent to implement a transaction (eg, a letter of intent). The authority pointed out that, when notifying a concentration on the basis of serious intent, the undertakings concerned assume the risk of any consequence that may result. If a letter of intent differs from the final agreement entered into by the parties following the authority's decision, they risk incurring a fine.

Competition Authority: 2014 to 2016 at a glance
Montenegro | September 29 2016

From 2014 to 2016 the Competition Authority was part of a project sponsored by the European Commission concerning the alignment of competition legislation in Montenegro with EU standards. The project results show that competition policy improved significantly between 2014 and 2016, and that increased court support with the implementation of fines will be introduced to aid further development.

Do companies have right to be heard during dawn raid?
Slovenia | September 22 2016

The Slovenian courts were recently asked to rule on companies' right to be heard during dawn raids by the Competition Protection Agency. As the Supreme Court's rationale has likely set a precedent for future cases, the agency must now apply a broader interpretation to the existing provision in the Competition Act regarding the right to be heard and include further details in its investigation reports.

First decision on 'abuse of stronger bargaining power'
Bulgaria | September 22 2016

The Commission for the Protection of Competition has fined Siemens EOOD for abuse of stronger bargaining power. Given the abstract wording of the term 'abuse of stronger bargaining position' in the Competition Protection Act and the lack of any methodology or instructions regarding its application, the commission's decision should be considered as initial guidance on how it will interpret the term in future.

Competition Authority's 2015 annual report
Albania | September 22 2016

In 2015 the Competition Authority issued 51 decisions addressing, among other things, restrictive agreements and abuse of dominance. Of 50 complaints submitted that year, 22 related to the electronic communications market. The authority often faces delays in court proceedings and 2015 was no exception, with six commission decisions appealed before the court.

Court of Appeal judgment on first antitrust case regarding joint bidding
Poland | September 08 2016

Although joint bidding is accepted by the European Union and national regulations, companies must remember that their cooperation may be subject to interest from competition authorities. This is because market players must comply with antitrust regulations when tendering collectively. The Warsaw Court of Appeal recently delivered a judgment in the first Polish antitrust case regarding bidding as a consortium.

Introduction of simplified merger control procedure and notifications
Albania | September 01 2016

The Competition Commission has adopted new guidelines on a simplified form and procedure for assessing merger notifications for transactions which raise no competition concerns. In order to increase transparency, on receipt of notification the commission will publish the basic information regarding the concentration on its official website. This will allow interested parties to submit their comments and observations.

HCA and NIPN conclude cooperation agreement for pharmaceutical consumer protection cases
Hungary | August 25 2016

Pharmaceutical companies and other healthcare suppliers have always been of special interest to the Hungarian Competition Authority (HCA) due to the associated public health concerns. In light of this, the HCA has concluded several cooperation agreements with other agencies, including the National Institute of Pharmacy and Nutrition, to facilitate the investigation of these markets, which has led to an increase in the number of consumer protection cases.

Competition Authority's intervention in railway traffic market
Serbia | August 25 2016

The Competition Authority recently investigated alleged abuse of dominance in the railway traffic market by state-owned railway company Zelezice Srbije. The authority determined that Zelezice Srbije was the only company operating railway traffic in the country and thus took measures to secure the establishment of effective competition in the market for access to public railway infrastructure.

Commission for Protection of Competition promotes regional cooperation and competition law
Serbia | August 11 2016

The Commission for the Protection of Competition recently hosted several competition events, demonstrating its determination to cooperate with other competition authorities. So far this year, commission representatives took part in the Eighth Sofia Competition Forum, visited the Romanian Competition Authority and co-organised an international conference on institution building between the national competition authorities of Southeast Europe.

Election of new Competition Protection Commission panel
Bulgaria | July 28 2016

The National Assembly has elected a new Competition Protection Commission panel. Despite the old panel's mandate coming to an end, the commission has showed an impressive level of antitrust activity. In May 2016 the commission issued several statements of objection against key players in the electricity production, wholesale and distribution markets, as well as opening an investigation into prohibited practices against a number of retail chains.

Agency rules on relevant market – how battle for market definition yielded results
Croatia | July 21 2016

In July 2015 the Competition Agency received an initiative to initiate proceedings against Ytong porobeton (YP) for alleged abuse of its dominant position. YP rejected all of the assertions against it, arguing that the relevant market had been incorrectly determined. Based on expert opinions, the agency concluded that YP was not dominant on the relevant market and thus that it had not abused its dominant position.

Sectoral inquiry provides valuable insight into online accommodation booking market
Hungary | June 30 2016

In July 2013 the Hungarian Competition Authority (HCA) initiated a sectoral inquiry into the online accommodation booking market, following its identification of market tendencies that had a potential distortive effect on competition. The HCA recently published its final report, which provides valuable insight on the market and online travel agency practices.

Court applies EU 'soft law' in agency agreement decision
Poland | June 30 2016

A recent Warsaw Court of Appeal decision on an alleged anti-competitive agency agreement provides guidance on the interpretation of the Guidelines on Vertical Restraints for the competition authority and the courts. Polish law does not clarify whether agency agreements are anti-competitive and the issue was not previously covered in case law, so the judgment should be of interest to entrepreneurs and competition law practitioners.

Who you gonna call? Anti-monopoly Office's non-disclosure practice
Slovakia | June 16 2016

The Anti-monopoly Office recently found that by informing an external lawyer, Tesco had violated its obligation to cooperate. For this and other violations in this regard, the Anti-monopoly Office fined Tesco approximately €1.6 million. Tesco appealed. Although the appeal decision set boundaries on the Anti-monopoly Office's use of this practice, it confirms that the practice is not in contradiction of the law – especially the right to defence.

Competition Protection Agency adopts commitments for Hyundai Auto Trade
Slovenia | June 09 2016

The Competition Protection Agency recently issued a final decision accepting Hyundai Avto Trade doo's commitments regarding its alleged anti-competitive behaviour. In the agency's view, the commitments will enhance competition between authorised and independent mechanics and help the agency to monitor the behaviour and compliance of the addressees. The addressees must comply with the decision within three months of its adoption.

No grounds for intervention regarding Uber's activities in Poland
Poland | May 19 2016

According to the Office for Competition and Consumer Protection (OCCP), the results of monitoring Uber's activities in Poland have provided no grounds for intervention. Instead, the OCCP stated that the entry of a new player on the local taxi market had strengthened competition, ensured a wider choice of carriers for consumers and forced Uber's competitors to improve the quality and innovativeness of their services.

Competition Protection Commission issues statement of objection to electricity distributor
Bulgaria | May 12 2016

The Competition Protection Commission recently issued a statement of objection to Energo Pro Grid AD for abuse of its dominant position. The commission's investigation focused on Energo Pro's refusal to connect Kayko OOD's production site to the electricity distribution grid. However, in a press release, the commission did not clarify why Energo Pro's refusal to connect Kayko is considered to be unjustified.

Competition Authority sets rules on leniency application
Albania | April 14 2016

The Competition Authority recently adopted the Fine Leniency Programme, which elaborates on the leniency rules set out in the Competition Law. The programme details the procedure for applying for and granting leniency for the full or partial reduction of fines. The programme explains that any undertaking which initiates a cartel cannot benefit from the leniency proceedings.

Hungarian Competition Authority's consumer protection activities
Hungary | April 14 2016

The Hungarian Competition Authority (HCA) deals with consumer protection cases where market competition is materially affected by the alleged infringement. The HCA takes a thorough approach to the enforcement of consumer protection regulations; companies would do well to remember this in the course of preparing promotional campaigns or other forms of communication.

Competition and Consumer Protection Act reform one year on
Poland | April 14 2016

A year has passed since major amendments to the Competition and Consumer Protection Act came into force. The reform introduced significant changes, not only to the merger control regime, but also in the area of anti-monopoly practices (ie, anti-competitive agreements and abuse of dominant position). In practice, the effects of the amendments are mainly visible in merger control, and include a substantial reduction in the duration of merger proceedings.

Competition Authority publishes annual report
Montenegro | March 24 2016

The Competition Authority recently published its 2014 annual report, revealing that in 2014 a total of 25 decisions were rendered. Four of the decisions concerned joint ventures and the rest were about the acquisition of control. Notably for participants in foreign-to-foreign transactions, only six notifications concerned the Montenegrin market, while 19 notified transactions were classified as extraterritorial.

Open floor after Hyundai Auto Trade proposes commitments to Competition Protection Agency
Slovenia | March 17 2016

In 2015 the Competition Protection Agency initiated proceedings against Hyundai Avto Trade doo and its authorised mechanics. Hyundai Avto Trade has now proposed remedies in order to address the agency's concerns and eliminate the alleged foreclosures on the market. The agency has invited all interested parties to provide comments, opinions and suggestions on the basis of the proposed remedies.

Competition Authority dawn raid on Philip Morris and British American Tobacco
Serbia | March 10 2016

The Competition Authority recently conducted a dawn raid on the Belgrade premises of Philip Morris and British American Tobacco on the suspicion that competition infringement had occurred. The authority also initiated ex officio procedures, as it suspected that the companies had conspired in order to align prices. This is the authority's second dawn raid involving the tobacco market.

Information cartels: a guide for undertakings
Hungary | March 03 2016

The Hungarian Competition Authority recently imposed one of its highest-ever fines on the Hungarian Banking Association for the anti-competitive exchange of information. Evidently, even activities in which market participants regularly engage and which they regard as lawful may help to reduce uncertainty in the market. This update provides an insight into anti-competitive information exchanges in order to minimise this risk.

Future of private competition law enforcement
Czech Republic | March 03 2016

The Prague Municipal Court recently dismissed the private damages action brought by private railway passenger carrier LEO Express against publicly owned national incumbent Czech Railways due to a lack of evidence. Although the judgment is not publicly available, the available information already raises the question of whether it might shed a negative light on the future of private enforcement of competition law in the Czech Republic.

Abuse of dominant position – commission issues statement of objection
Bulgaria | February 11 2016

The Competition Protection Commission recently issued a statement of objection against Aurubis Bulgaria AD and Aurubis AG. The commission has accused Aurubis of abuse of its dominant position in the Bulgarian market for the production and sale of sulphuric acid and for discriminating against its Bulgarian customers in favour of international clients.

Competition Authority imposes fines for bid rigging
Serbia | February 11 2016

The Competition Authority recently investigated four companies for bid rigging in a tender organised by the Ministry of Defence for the procurement of uniforms and shoes in 2013. It fined them a total of approximately €300,000 and prohibited them from participating as bidders in public procurement for the next 18 months.

Participation of associations in cartels: another twist in the saga
Croatia | February 04 2016

In a recent case the Competition Agency for the first time accepted the proposed commitments in a case conducted under the qualification of a prohibited agreement, even though all the characteristics of a prohibited horizontal agreement limiting competition were present. By accepting the commitments, the agency abandoned its previous position in favour of a more lenient one.

Competition Authority: recent developments
Albania | January 28 2016

The Competition Authority recently adopted new guidelines on merger control conditions and obligations intended to comply with EU regulations. The authority also recently approved a concentration in the financial leasing market and announced an investigation into the banking sector to assess whether competition is being limited or distorted as a result of the behaviour of one or more banks.

Lessons learned from alleged cartel case against insurers
Croatia | January 28 2016

In a recent ruling by the Croatian Competition Agency (CCA), a decision by the Croatian Insurance Bureau to revoke the power of an insurer to issue motor certificates was found not to constitute a prohibited agreement. Irrespective of this, the CCA noted that it is not the role of undertakings to control the operation of their competitors, and that the parties involved should have reported the insurer if they thought it had breached the law.

The lofty promises (and drawbacks) of the leniency programme – guidelines for applicants
Hungary | January 28 2016

The Hungarian Competition Authority (GVH) recently launched a promotion campaign for its leniency programme, emphasising that "a cartel will not stay hidden, but one may get away with a leniency application". In light of these great efforts on the GVH's part, it is crucial to examine the benefits and drawbacks of the leniency programme from the undertaking's perspective.

New notice on settlement procedure – an offer one cannot refuse?
Hungary | December 17 2015

Swift, simple and less burdensome proceedings with a 10% reduction in fines – these are the benefits that the Hungarian Competition Authority chose to emphasise in its recent notice on the settlement procedure. Although the notice generally aligns with the relevant EU rules, it contains noteworthy deviations which may fundamentally affect its application.

Competition Authority imposes €74 million fine for bid rigging
Czech Republic | December 10 2015

The Competition Authority recently announced in a press release that it had fined companies from the construction sector approximately €74 million for bid rigging. Despite the fact that only limited information is available, the fine seems exceptionally high compared to those imposed by the Competition Authority in the past.

Competition Authority investigates competition law infringements
Serbia | November 26 2015

The Competition Authority recently launched several competition law infringement investigations, including an investigation against Belgrade's public utility company Infostan. Without having consulted the service receivers, Infostan included costs for insurance in a monthly invoice. Accordingly, the authority began an investigation, alleging that Infostan had abused its dominant position.

Competition commission publishes annual report
Macedonia | October 29 2015

The Commission for the Protection of Competition recently published its 2014 annual report, in which it outlines the developments of the previous year. The commission issued 41 decisions in administrative proceedings, four opinions under the Competition Act and 19 opinions under the State Aid Control Act. It also decided 10 cases in misdemeanour proceedings and imposed fines totalling Md233,530,047.

Competition Protection Agency active in pharmaceutical market
Slovenia | October 29 2015

The Competition Protection Agency is resuming increased levels of activity. It recently initiated formal proceedings against three companies, on the basis of a distribution agreement relating to pharmaceutical products. Although there is no official prioritisation of industries when it comes to scrutiny of the market, it seems that pharmaceutical companies often find themselves under the spotlight of the agency.

Competition Protection Commission penalises Uber for unfair acts
Bulgaria | October 22 2015

The Competition Protection Commission (CPC) recently fined Uber BV and Rasier Opеrаtions BV for unfair trade practices committed through their provision of the UberX service and ordered them to cease the unfair practices. The CPC decision established that both companies had offered taxi services that failed to comply with the legal requirements for taxi transport, giving them an unfair advantage over their competitors.

Competition Authority clears media and pharma acquisitions
Serbia | October 08 2015

The Competition Authority has cleared leading pharmaceutical company Hemofarm's acquisition of family business Ivančić i sinovi, even though Hemofarm is expected to slightly increase its market share. The authority has also cleared Antenna Stream TV Limited Kipar's acquisition of Lake Blade Holding; both parties operate in the media market.

Corporate Finance/M&A

Impact of environmental authorisation in transfer of assets or business
Romania | November 29 2017

Regulatory approval plays an important role in the transfer of assets or lines of business. In general, where permits are issued in consideration of assets being sold, the transfer will entail a new authorisation procedure to be undertaken by investors. This is also the case for environmental authorisation; however, as local authorities do not consistently deal with the applicability of the various regulations in this regard, mitigating potential hurdles will generally require coordination with the respective authorities involved.

ECJ rules on subordinated loans and cross-border mergers
Austria | September 07 2016

In 2014 the Austrian Supreme Court submitted a request to the European Court of Justice (ECJ) for a preliminary ruling on the interpretation of EU law regarding cross-border mergers. The ECJ recently ruled that in cases of merger by acquisition, all contracts entered into by the transferor company pass to the acquiring company without novation. Thus, the law applicable to the contracts before the merger also applies to the underlying contracts after the merger.

Employment & Benefits

Incapacity to work – what can employers do?
Hungary | November 22 2017

Employers are often frustrated by employees' incapacity to work for health reasons, but they must act with care when addressing such situations. In an attempt to protect employee interests, legal regulations provide certain restrictions on what employers can do if an employee is unable to work for health reasons. A recent Supreme Court decision has further clarified some of these restrictions.

Intragroup transfers of HR data
Hungary | September 20 2017

Organisations with legal entities and employees in several EU member states often try to centralise their human resources (HR) functions to some extent, which occasionally requires them to share employee and HR data within their group. Although existing Hungarian law provides a stable legal environment with clear rules for employers as data processors, there is a general feeling of uncertainty around this topic, which is partly due to the upcoming entry into force of the EU General Data Protection Regulation.

Conflicts of interest in employment relationships
Hungary | June 28 2017

Although the Labour Code fails to define a 'conflict of interest', its general principles prohibit employees from engaging in conduct which could jeopardise their employer's rightful economic interests. Depending on the circumstances, a conflict may constitute a severe violation of the employee's employment terms and can be punished appropriately. In other cases, a conflict may arise that is not the employee's fault, which can therefore be appropriately rectified without penalties.

Consultation duties in event of collective redundancy
Hungary | April 12 2017

The existing Labour Code amended employers' consultation duties in the event of a collective redundancy. When the code entered into force, this change seemed technical and went somewhat unnoticed among other more significant changes. However, the change is important, as it simplifies employers' consultation duties in the absence of employee representative bodies. Simultaneously, the new rule's compliance with EU law has raised questions around how employers should act.

Workforce reorganisation under anti-discrimination rules
Hungary | February 15 2017

In Hungary, employers have significant freedom to change their organisational structure and reorganise their workforce, which includes dismissing employees. However, there are some limitations – both generally and in the context of anti-discrimination rules. Even if the courts respect employers' freedom in organising their workforce, employers must be careful not to exceed the limits of this freedom in order to prevent disputes.

New obligation for employers to elect work safety representative
Hungary | December 21 2016

A recent amendment to the Act on Labour Safety reduced the number of employees who can be employed at a workplace before an employer must elect a work safety representative from 50 to 20. Employers that are affected by the new regulation are advised to ensure that they comply with the requirements governing health and safety at work and elect a work safety representative.

OnDemand: Diversity in the workplace
Hungary | October 26 2016

Research shows that – in accordance with global trends – Hungarian employers tend to attach great importance to fostering diversity in the workplace. Although some employers have yet to implement particular measures in this regard, few refuse to address the issue. The employment of workers from all age groups is a key focus area, along with the employment of workers with a reduced capacity to work and low-skilled and disabled workers.

Bonus claims: evolving court practice
Hungary | October 12 2016

Although performance-based compensation has long been an integral part of Hungarian employment law, neither the Labour Code nor the relevant commentaries provide a clear-cut definition of a 'bonus'. As a result, the definition and key legal principles governing bonuses have been developed by court practice, which shifted after the economic crisis and the adoption of the new Labour Code in 2012.

Common problems with non-compete agreements
Hungary | August 17 2016

While the conclusion of non-compete agreements or inclusion of non-compete clauses and other restrictive covenants in employment contracts is common practice in Hungary, a number of issues frequently arise – particularly in regards to statutory compensation, enforceability and unilateral termination. To avoid legal disputes, employers should carefully consider these issues before concluding non-compete agreements.

ECJ judgment shakes up fringe benefit framework
Hungary | June 22 2016

Under the Hungarian fringe benefit framework (the so-called 'cafeteria system'), employers offer employees a choice of different benefits of a set value, which are subsidised by the state and therefore beneficial to both parties. Several amendments to the system are planned, mainly due to a potential amendment to the personal income tax laws and a recent European Court of Justice judgment, which held that the system violated EU law.

Employer representation – who is entitled to communicate dismissal?
Hungary | April 20 2016

Considering the importance of unilateral declarations and commitments in the employment relationship, Hungarian labour law sets out detailed rules regarding the representation of the employer when making such declarations. While the previous legislation raised certain practical issues in this regard, the new Labour Code provides greater freedom for employers in establishing the system for exercising their rights through representatives.

Balancing the right to employer control with employee privacy concerns
Hungary | March 02 2016

Hungarian labour law provides employers with the right to monitor employees' behaviour and actions, provided that such monitoring pertains exclusively to employees' work. The law affords employers a significant degree of flexibility in this regard, but careful consideration of the company's needs and thoughtful legal analysis are required before implementing surveillance systems.

Can overqualification constitute valid grounds for dismissal?
Hungary | January 27 2016

Employing overqualified employees has long been a source of debate among human resources (HR) professionals. However, overqualification has recently become a more prominent issue due to the growing number of graduate workers and the pace of technological development. Several practical HR aspects must be addressed when employing overqualified workers, which often give rise to legal issues.

Restrictions on use of temporary staff agency workers
Hungary | December 09 2015

The use of temporary agency workers is particularly popular among employers whose workforce needs fluctuate or which require employees for short-term or seasonal jobs. As a general rule, employers may employ an unlimited number of agency workers for any job position, for a period of up to five years. However, the law imposes certain restrictions and prohibitions on the use of temporary agency workers.

Unlawful dismissal – additional damages claims after binding court decision?
Hungary | September 30 2015

The 2012 Labour Code introduced significant changes concerning the compensation to be paid by employers in the event of unlawful dismissal. As the previous regime put an unreasonably high burden on employers, the new Labour Code introduced a new penalty regime for unlawful dismissal. The Supreme Court has now issued an opinion addressing the most important questions relating to this new regime.

Labour Code changes related to Sunday work
Hungary | May 20 2015

A new act recently entered into force which introduced new rules governing the opening times of retail shops. The new act brings significant changes, including a prohibition against retail shops opening on Sundays. The new rules are intended to preserve employees' rights and allow them more time to rest, but have nonetheless provoked heated debate.

Energy & Natural Resources

New rules for mismatched unbundled capacities at interconnection points
Austria | August 21 2017

E-Control recently published a draft of the amendment of the Gas Market Model Ordinance 2017. The envisaged amendment – and especially the newly implemented capacity conversion service – resolves the capacity mismatch issue by compensating network users for the economic disadvantages that arise from having to buy double capacity due to the bundling regime at interconnection points.

Renewable energy: amendment to Green Electricity Act doubles funding
Austria | July 24 2017

After four months of negotiations, the Austrian National Council has finally reached an agreement on the amendment of the Green Electricity Act. The required two-thirds majority was reached by a last-minute agreement between the coalition parties and the Green Party. The aim of the new legislation is to increase the percentage of green electricity and expand renewable energy in Austria.

Update on Austrian-German single electricity market
Austria | July 10 2017

Following an Agency for the Cooperation of Energy Regulators decision which foresees a split of the Austrian-German electricity market, the Austrian National Regulatory Authority, E-Control and the Austrian transmission system operators have announced that they plan to exhaust all legal possibilities in order to appeal the decision.

Government bill introduced to amend promotion scheme for green electricity
Austria | February 20 2017

Although the long-awaited proposal to amend the Green Electricity Act was recently published, those who expected it to expand renewable energy in Austria will be disappointed and must patiently await the envisaged expansive amendment to the act. That said, the amendment package has brought some hope for new investments.

E-Control approves new cost and tariff methodology for gas TSOs
Austria | February 06 2017

E-Control recently announced the next methodology for determining costs for gas transmission system operators (TSOs), which will apply until December 31 2020. The methodology is based on the incentives stipulated for the second regulation period for gas. It applies the calculation of TSOs' allowed costs and their volume production and comprises framework conditions for all entry and exit points, as well as interconnection points of the TSOs transmission lines.

Is a closed pumping system a hydroelectric power plant?
Austria | October 24 2016

The Federal Administrative Court recently ruled that the Koralm pumped storage hydroelectric power plant fulfils the legal prerequisites for a hydroelectric power plant and thus requires an environmental impact assessment. However, the court granted an appeal because no clear decision exists on whether a project that uses water in a closed pumping system to produce electricity falls under Appendix 1(30) of the Environmental Impact Assessment Act.

Amendments to Gas Market Model Ordinance
Austria | September 05 2016

The Gas Market Model Ordinance plays a major role in the Austrian gas market, as it regulates network access and the capacity management and balancing system. The ordinance is in the process of being amended in order to establish more nuanced requirements and options in relation to the calculation of residual loads, the merit order list, balancing energy requirements and cross-border interconnection points.

Energy regulator's independence denied because of minister's information rights
Austria | May 16 2016

The Federal Administrative Court recently deemed the constitutional right granting the federal minister of science, research and economy certain information rights regarding Austria's National Regulatory Authority to be inconsistent with EU law. If the Supreme Administrative Court finds that Section 5(3) of the Energy Control Act does not comply with the independence requirements, pending network cost decisions which have been referred to the court will likely be revoked.

Trading with energy efficiency measures
Austria | March 28 2016

Following the implementation of the Federal Energy Efficiency Act, energy suppliers must take energy efficiency measures amounting to at least 0.6% of their total energy supply to domestic end customers in the previous year. If a supplier cannot reach the savings target, it may buy its way out by approaching its own customers, approaching outside end customers, shopping for efficiency measure trading platforms or purchasing measures from measure traders.

New specifications on energy supplier's obligation to take energy efficiency measures
Austria | January 25 2016

The minister for science, research and economy recently released an ordinance enacting specifications for the accountability of energy efficiency measures. The ordinance derogated an earlier method document which provided for an interim method to evaluate energy efficiency measures but left a series of legal uncertainties. The ordinance will help energy suppliers to reach their saving targets in the most economically favourable way.

Energy Infrastructure Act – new law brings few major changes
Austria | July 06 2015

The draft Energy Infrastructure Act contains relevant rules of procedure in relation to the country's obligation to meet EU regulations regarding the development and modernisation of a trans-European energy infrastructure. However, apart from a new concept of construction bans, the draft contains no substantial novelties. Therefore, it remains to be seen whether the changes will actually expedite proceedings.

ECJ rules on exploratory drilling for natural gas and mineral oil
Austria | April 07 2015

In a recent case, the Ministry of Economy authorised a crude oil exploration company to undertake exploratory drilling for natural gas and mineral oil within an Austrian municipality. The municipality challenged the authorisation on the grounds that the exploratory drilling was subject to an environmental impact assessment. The Supreme Administrative Court referred the matter to the European Court of Justice for a preliminary ruling.

Solution to complying with EU efficiency targets
Austria | January 19 2015

Under the Energy Efficiency Law, large companies are now required either to perform external audits at regular intervals or install an energy and environmental management system. Energy suppliers must implement yearly energy efficiency measures in their operations, for their final customers or for other energy consumers. In practice, many questions will arise in relation to the new obligations.

Environment & Climate Change

New outlines for water management and planning
Austria | October 02 2017

The first update and review of Austria's national water management planning instrument has revealed that the objectives of the EU Water Framework Directive will be achieved neither to their full extent nor in a timely manner. Nonetheless, the National Water Management Plan 2015 is a useful and comprehensive document that contains extensive information for all stakeholders and sets out the next steps to achieve the ultimate goal of restoring Austria's water bodies.

Constitutional Court raises hope for third runway at Vienna International Airport
Austria | July 17 2017

The Constitutional Court recently reached a landmark decision and overturned the Federal Administrative Court decision which had rejected the permit for a third runway at Vienna International Airport on the grounds of climate protection and land use. This decision is significant in that it has far-reaching consequences for many other projects beyond the scope of the third runway. It is also relevant to Austria as a business hub.

Climate impact: game changer for third runway at Vienna Airport
Austria | May 08 2017

The Federal Administrative Court recently hindered the plans for a third runway to be built at Vienna Airport, explaining that the positive aspects of the project could not justify the extra carbon dioxide pollution. The decision was reached despite the court conceding to the fact that air traffic will increase in the future and thus a third runway is necessary. This may be the first time that any court worldwide has rejected a project due to climate protection.

Court rules on rights in environmental impact assessment
Austria | January 16 2017

The Federal Administrative Court recently addressed whether the party to a winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment for the inferior project. The court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.

No party status for neighbours in declaratory proceedings
Austria | July 11 2016

The Federal Administrative Court recently confirmed that neighbours in earlier cases can enforce an environmental impact assessment only in subsequent approval proceedings. Further, the court has clarified that neighbours do not have party status in declaratory decision proceedings. As the legislature had failed to regulate earlier cases, this decision is a valuable contribution to procedural law.

Environmental impact assessments – new rights for neighbours
Austria | April 18 2016

The European Court of Justice recently ruled that the exclusion of neighbours from challenges to declaratory decisions relating to environmental impact assessments (EIAs) is incompatible with EU law. Following this decision, the Federal Administrative Court has recently held that neighbours can now enforce an EIA in subsequent approval proceedings. Further, neighbours can now appeal against negative declaratory decisions.

Amendment to waste and clean-up regulations – important implications for banks
Austria | February 08 2016

Under a recent bill to amend the Waste Management Act 2002, the federal government will be granted a statutory preferred pledge for all costs incurred when securing and remediating contaminated properties. This pledge will take priority over all other liens and property-related charges.

Change in proceedings for cultivation of GMOs
Austria | October 19 2015

Austria recently implemented two federal laws in order to implement EU Directive 2015/41/EC, which provides member states with the possibility of restricting and prohibiting the cultivation of genetically modified organisms (GMOs) in their territories. Austria's federal legislature has also enacted a framework law on genetic engineering, which highlights the broad political consensus in favour of prohibiting the cultivation of GMOs in Austria.

Implementation of Water Framework Directive
Austria | July 20 2015

Despite Austria's more stringent Water Law, the European Court of Justice's interpretation of the 'no deterioration' clause will likely further restrict the permissibility of projects that may affect the ecological or chemical status of bodies of surface water or groundwater. Assessment efforts during the preparation of projects and approval procedures will significantly increase – in particular, with regard to the question of whether a better environmental option exists.

Aarhus Convention – infringement procedure against Austria
Austria | May 11 2015

The third pillar of the Aarhus Convention establishes a general right to bring a case before the courts if national environmental regulations might be subject to contravention. However, the implementation of the third pillar has caused controversy, and in July 2014 the European Commission initiated proceedings against Austria for non-compliance. As the European Union has provided no precise instructions for implementation, this suit is questionable.

Amendments to Chemicals Act and Biocidal Products Act
Austria | April 13 2015

The agriculture, forestry, environment and water economics minister recently presented a draft law to amend the Chemicals Act and the Biocidal Products Act. The proposed amendments complete the standardisation of the classification, labelling and packaging of substances and mixtures. The amendments simplify the term 'toxin' and shift the current toxin purchase permit system to a simplified system of toxin purchase certificates.

ECJ rules on environmental impact assessment for exploratory drilling
Austria | April 07 2015

In a recent case, the Ministry of Economy authorised a crude oil exploration company to undertake exploratory drilling for natural gas and mineral oil within an Austrian municipality. The municipality challenged the authorisation on the grounds that the exploratory drilling was subject to an environmental impact assessment. The Supreme Administrative Court referred the matter to the European Court of Justice for a preliminary ruling.

IT & Internet

Draft Data Protection Amendment Act 2018 in appraisal
Austria | May 30 2017

Approximately one year before the General Data Protection Regulation will come fully into force, the Austrian legislature has officially started a six-week consultation process for the national Data Protection Amendment Act 2018. If and to what extent the legislature will make use of the competencies provided for by the 'opening clauses' in the General Data Protection Regulation is highly relevant to companies, and the amendment act has answered this question.

Ban on most-favoured nation clauses in online travel sector – end of online booking services?
Austria | November 01 2016

A draft law amending the Federal Act against Unfair Competition 1984 and the Price Labelling Act was recently published for public consultation. The draft law intends to introduce a ban on most-favoured nation clauses in contracts between online travel agencies and hotel operators. Commercially, the draft law puts online travel agencies' business model at risk and may even deter innovation and investments beyond this niche industry.

One and two-character domain names available under ccTLD '.at'
Austria | September 06 2016

The Austrian registry operator recently initiated the launch process for approximately 5,000 one and two-character domain names under the top-level domain (TLD) '.at'. Owners of trademarks consisting of one or two characters should consider requesting delegation of their short trademarks as domains under the '.at' TLD in order to use them or at least prevent unauthorised third parties from taking advantage of their marks.

'.insurance' – new gTLD targeting insurance sector
International | May 10 2016

Sub-level domain names under the new generic top-level domain '.insurance' will soon be available – a development that will be of particular interest for the insurance sector, as it will allow domain names such as '[Yourbrand].insurance' and '[Yourproduct].insurance'. The '.insurance' domain names are expected to become generally available in June 2016, preceded by a sunrise period in May 2016.

OnDemand: Compliance and the cloud
Austria | October 21 2014

Austria has no specific data security rules for cloud computing. However, depending on the data categories involved, specific data-related security regulations may apply. To date, there has not been a homogenous market approach to tackling the risks connected to cloud services, although companies are starting to become aware of the related risks.

BYOD and data protection – incompatible or manageable?
Austria | March 04 2014

Employers are increasingly keen to introduce a 'bring your own device' (BYOD) policy, which allows them to assign company device management to employees and, by doing so, save manpower and costs on device support and maintenance. However, there is a downside: BYOD involves allowing employees to access (sometimes sensitive) company data through their private devices.

Under pressure: data breach notification must be made within 24 hours
Austria | August 20 2013

The European Commission recently published a new regulation on the measures applicable to the notification of personal data breaches under the EU Directive on Privacy and Electronic Communications. When the regulation enters into force, national rules that are in contradiction to European law must cease to apply. This raises some substantial questions with regard to the application of the Austrian Telecommunications Act.

Rise in mobile apps triggers data protection concerns
Austria | March 26 2013

Mobile applications are convenient, entertaining, easy to handle, cheap and versatile. However, the processing of other people's personal data through an app triggers full responsibility under data protection laws. Users would thus be well advised to consider whether they would wish to have their own data processed in the same way before processing other people's data through an app.

ECJ finds Austrian Data Protection Authority insufficiently independent
Austria | October 30 2012

The European Court of Justice (ECJ) recently ruled that the Austrian Data Protection Authority is not a sufficiently independent regulatory body and therefore is not in line with the respective requirements of the EU Data Protection Directive. In particular, the ECJ took offence at the fact that the day-to-day business of the authority is managed by a federal official.

Austria implements EU Data Retention Directive at long last
Austria | March 15 2011

Following European Commission proceedings against Austria for breaching EU law by failing to implement the EU Data Retention Directive, and a related European Court of Justice ruling against Austria, the government has now decided to implement the directive. The draft legislation implements the minimum requirements set out by the directive by providing for a retention period of only six months.

New amendments to data protection law
Austria | November 09 2010

In early 2010 substantial revisions to the Data Protection Act entered into force. Among other things, the revised act introduced to the data protection regime a notification duty requiring every data controller in Austria to inform data subjects accordingly should they become aware of systematic and seriously unlawful misuses of personal data.

Insurance

'.insurance' – new gTLD targeting insurance sector
International | May 10 2016

Sub-level domain names under the new generic top-level domain '.insurance' will soon be available – a development that will be of particular interest for the insurance sector, as it will allow domain names such as '[Yourbrand].insurance' and '[Yourproduct].insurance'. The '.insurance' domain names are expected to become generally available in June 2016, preceded by a sunrise period in May 2016.

Projects & Procurement

Imminent implementation of public procurement directives
Austria | March 21 2017

Almost one year after the two-year transition period of the EU directives on public procurement law expired, Austria published a consultation draft of the new Federal Procurement Act 2017 to implement the directives. While Austria took a somewhat conservative approach when implementing the directives, there are some areas where the Austrian draft for the transposition of the directives is significantly stricter than the directives themselves.

Court rules on rights in environmental impact assessment
Austria | January 17 2017

The Federal Administrative Court recently addressed whether the party to a winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment for the inferior project. The court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.

Procurement thresholds increased until 2018
Austria | November 08 2016

The regulation increasing the Procurement Act's thresholds has been extended for a further two years. Thus, contracting public authorities can continue to benefit from the significantly wider application of the direct award procedure and the so-called 'restricted procedure without prior publication' until 2018. However, contracting authorities should be aware that the Treaty on the Functioning of the European Union may still require an ex ante notice for contracts of a certain cross-border interest.

Austria fails to implement new procurement directives in time
Austria | May 03 2016

The two-year transition period for implementing the new EU directives on public procurement recently lapsed. While the majority of member states have at least partially implemented the directives, Austria has yet to pass draft legislation transposing any of them. However, despite this, the directives (at least in significant parts) already apply in Austria and individuals can – either directly or indirectly – rely on the majority of the provisions therein.

Do Austrian courts have jurisdiction over German procurement procedures?
Austria | March 22 2016

The Vienna Administrative Court recently ruled on a challenge to a tender conducted by a German centralised purchasing body under German public procurement law. The court concluded that even if the German purchasing body was qualified as a centralised purchasing body, the Austrian complaints mechanism would apply, as the purchasing activities in relation to the Austrian lot were attributable to the Viennese contracting authority.

Contracting authorities may exclude tenderers on basis of criminal charges
Austria | February 09 2016

The Vienna Administrative Court recently ruled on the requirements regarding the level of proof needed to demonstrate grave professional misconduct in relation to public procurement. The court held that a contracting authority need not necessarily wait for a final criminal judgment: if criminal investigations provide grounds for sufficient and precise suspicion, there is no need to wait for an indictment or a court order to institute proceedings.

Court confirms advance effects of new EU procurement directives
Austria | August 04 2015

The Administrative Court of Lower Austria recently confirmed that certain provisions in the new EU directives on public procurement have advance effects. The court ruled that the negotiated procedure set out in the Procurement Act must be interpreted in line with EU Directive 2014/24/EC. Contracting authorities and bidders should thus consider certain mandatory rules and provisions set out in the directives when applying existing regimes.

'Fair procurement' initiative requires new criteria for construction contracts
Austria | January 27 2015

The government is preparing an amendment to the Federal Procurement Act which will create stricter rules for the award of construction contracts. However, the timing of the amendment is questionable, given that the act will need to be completely revised due to the implementation of three new EU directives, resulting in two procurement law adjustments within only 12 months.