Graf & Pitkowitz Rechtsanwälte GmbH updates

Supreme Court manages shopping centre management costs
Graf & Pitkowitz Rechtsanwälte GmbH
  • Real Estate
  • Austria
  • June 08 2018

Service charge provisions in shopping centre lease agreements frequently give rise to disputes between landlords and shop operators. In a recent decision on such costs, the Supreme Court offered some insights into shopping centre lease agreements which go beyond service charge provisions.

Selective distribution systems and exhaustion of trademark rights
Graf & Pitkowitz Rechtsanwälte GmbH
  • Intellectual Property
  • Austria
  • June 04 2018

The Supreme Court recently affirmed once more that the exemptions to the principle of exhaustion of trademark rights must be construed narrowly. In its decision, the court made clear that once trademark rights are exhausted, resellers may use not only word marks, but also figurative marks without any limitations when advertising or reselling original products.

Subordination agreements, revisited
Graf & Pitkowitz Rechtsanwälte GmbH
  • Banking
  • Austria
  • May 11 2018

The Supreme Court recently confirmed the admissibility and validity of qualified subordination agreements included in general terms and conditions and with respect to consumer transactions. Further, the Supreme Court held that qualified subordination agreements – in particular, those relating to loan agreements – create a specific type of contract. This decision has a significant impact on standard bank loan transactions, especially in restructuring situations.

Employed or self-employed? Request an advance ruling!
Graf & Pitkowitz Rechtsanwälte GmbH
  • Employment & Benefits
  • Austria
  • May 09 2018

Determining whether an individual is an employee or self-employed can be risky for both the contractor and engager. Often, no one knows exactly how to qualify an individual until the national insurer claims arrears in social security payments in the wake of an audit. The parties involved hardly ever have legal certainty in advance. The Social Security Determination Act aims to change that.

Vienna International Arbitral Centre issues new arbitration and mediation rules
Graf & Pitkowitz Rechtsanwälte GmbH
  • Arbitration & ADR
  • Austria
  • April 05 2018

The new Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Mediation recently entered into force. They apply to all arbitration and mediation proceedings initiated after December 31 2017. The amendments to the VIAC rules allow for parties to conduct efficient and cost-effective arbitration and mediation proceedings, while offering enough flexibility when applying them in individual cases.

Supreme Court: no change of control despite departure of majority shareholder
Graf & Pitkowitz Rechtsanwälte GmbH
  • Real Estate
  • Austria
  • March 09 2018

The Supreme Court recently considered whether a landlord can increase the rent if the majority shareholder of a partnership dies and his or her shares are distributed equally among the remaining partners, none of whom holds a majority in the partnership. In the decision, the Supreme Court offered an insight into how to assess the change of control in a company that is not a corporation.

Demand guarantees versus sureties on first demand
Graf & Pitkowitz Rechtsanwälte GmbH
  • Banking
  • Austria
  • March 02 2018

The Supreme Court recently clarified its position on sureties payable on first demand and confirmed its view on the interpretation of contractual undertakings by which one party assumes a personal liability for a third-party debt. Considering the significant different legal consequences for a beneficiary's position following a qualification as either an abstract guarantee or an accessory surety, the guidelines provided by the court are of the utmost importance.

Accurate and complimentary – difficult standard for recommendation letters
Graf & Pitkowitz Rechtsanwälte GmbH
  • Employment & Benefits
  • Austria
  • February 07 2018

Under Austrian law, a recommendation letter must be truthful and cannot contain language that would aggravate the professional advancement of the employee. When truthfulness would result in less than lavish praise, employers must resort to a short-form recommendation letter, devoid of any information beyond the type of work performed and the duration of employment. This alternative, although accurate in its lack of praise, can aggravate an employee's career prospects.

Marketability is key: if a work can be separated it is not a joint work
Graf & Pitkowitz Rechtsanwälte GmbH
  • Intellectual Property
  • Austria
  • January 08 2018

In a welcome development of Austrian copyright law, the Supreme Court recently ruled that a combination of works by two artists does not constitute a joint work if it can be separated, even if the works involved were created for the sole purpose of being combined as a jointly planned contribution. Strong indicators of whether parts of a work are separable are the individual marketability and possible depreciation of the separated parts.

Supreme Court approves detour for setting aside proceedings
Graf & Pitkowitz Rechtsanwälte GmbH
  • Arbitration & ADR
  • Austria
  • December 21 2017

The Supreme Court recently considered whether proceedings (wrongly) commenced before an Austrian district court to set aside an arbitral award could nevertheless be continued. Notwithstanding the Supreme Court's exclusive jurisdiction regarding the setting aside of arbitral awards, the unusual facts of the case at hand led to the creation of an additional channel of appeals not provided for in the law.

Limits set to client communication via e-banking
Graf & Pitkowitz Rechtsanwälte GmbH
  • Banking
  • Austria
  • December 15 2017

The Supreme Court recently rendered its first judgment on the admissibility of the use of electronic mailboxes, which are exclusively incorporated and only accessible via the e-banking system of a credit institution for serving client account notices and statements to consumers. This ruling will significantly affect Austrian banking practice.

New group insolvency law
Graf & Pitkowitz Rechtsanwälte GmbH
  • Insolvency & Restructuring
  • Austria
  • December 08 2017

The Insolvency Code was recently amended in response to the introduction of the EU Insolvency Regulation, creating – for the first time – specific rules for the insolvency of corporate groups in Austria. From a practical standpoint, this approach is welcome, as it may lead to faster and more efficient insolvency proceedings. It remains to be seen how the new rules will affect insolvency practice and whether coordination proceedings according to the EU regulation will be applied in practice.

Blue-collar and white-collar employees – sweetening the deal
Graf & Pitkowitz Rechtsanwälte GmbH
  • Employment & Benefits
  • Austria
  • December 06 2017

In its final session before the general election, Parliament passed a bill which serves as a first step in harmonising the different legal regimes covering blue-collar and white-collar employees. However, not everyone is happy with this half-hearted harmonisation project – most notably, employer organisations – as they believe that the extended notice period for blue-collar workers will cost employers dearly.

Parliament stomps on stamp duty for residential leases
Graf & Pitkowitz Rechtsanwälte GmbH
  • Real Estate
  • Austria
  • November 24 2017

In the run up to the recent snap elections, Parliament passed a bill exempting rent agreements for residential leases from stamp duty. The stamp duty on non-residential leases – in particular, commercial and retail leases – remains unchanged. However, these leases are being re-evaluated due to recent case law from the tax authorities.

Introduction of certification marks and other amendments to Trademark Law
Graf & Pitkowitz Rechtsanwälte GmbH
  • Intellectual Property
  • Austria
  • November 20 2017

Parliament recently transposed parts of EU Directive 2015/2436 into national law. Most important is the introduction of certification marks, which did not previously exist under Austrian law. Other provisions of the bill concern the division of trademark applications, the shortening of the validity period of a registration and the reduction of the registration fee.

Implementation of Fourth Anti-money Laundering Directive in Austria – what to expect
Graf & Pitkowitz Rechtsanwälte GmbH
  • Banking
  • Austria
  • October 27 2017

Following the Fourth Anti-money Laundering (AML) Directive coming into force, Austria transposed the directive into law through two major legislative acts. This update provides an overview of the effects and obligations arising from the implementation of the Fourth AML Directive – in particular, the due diligence that banks will have to undertake on prospective clients.

Up in smoke: new law favours non-smokers in pub over workplace
Graf & Pitkowitz Rechtsanwälte GmbH
  • Employment & Benefits
  • Austria
  • October 04 2017

As of May 1 2018 smoking in restaurants and bars will be prohibited. The restrictions on smoking in the workplace will also be tightened as of this date. However, the new provisions still afford some leeway to employers in that they can organise smoking breakrooms. As a consequence, the workplace may be more smoker friendly than pubs – who would have imagined that.

Protective measures in insolvency proceedings
Graf & Pitkowitz Rechtsanwälte GmbH
  • Insolvency & Restructuring
  • Austria
  • September 08 2017

In some cases of insolvency, it may be necessary to take special measures which affect the debtor or third parties in order to prevent the insolvent assets from diminishing. These cases are governed by Section 78 of the Insolvency Code, which offers the possibility of ordering individual protective measures with regard to the debtor and third parties. In particular, recent case law has extended the scope of application of these protective measures.

Another brick in the wall: Constitutional Court reviews statutory rent regulations
Graf & Pitkowitz Rechtsanwälte GmbH
  • Real Estate
  • Austria
  • August 18 2017

In 2015 Austria introduced an act which allows individuals, under certain conditions, to challenge laws before the Constitutional Court as unconstitutional. This gave hope to many landlords, which saw this as a tool to challenge the existing rent control regulations. The Constitutional Court recently handed down two new decisions on the same matter with surprising results.

Vocational reintegration through novel part-time model
Graf & Pitkowitz Rechtsanwälte GmbH
  • Employment & Benefits
  • Austria
  • July 26 2017

New legislation recently came into effect that aims to ease the process of reintegration into the workplace for employees who have been on extended sick leave and who would benefit from a reduced workload in order to aid rehabilitation and reconnect with the workplace. Although it is a well-meant initiative to curb the increase in long-term sickness, the legal framework reveals some major flaws.

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