Austria, Schoenherr Attorneys at Law updates

Company & Commercial

Contributed by Schoenherr Attorneys at 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.


Energy & Natural Resources

Contributed by Schoenherr Attorneys at Law
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.


Environment & Climate Change

Contributed by Schoenherr Attorneys at Law
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.


IT & Internet

Contributed by Schoenherr Attorneys at Law
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.

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.


Projects & Procurement

Contributed by Schoenherr Attorneys at Law
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.


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