Latest updates

The time has come: Federal Procurement Act 2018 just around the corner
Schoenherr Attorneys at Law
  • Projects & Procurement
  • Austria
  • June 12 2018

More than four years after the entry into force of the new EU Public Procurement Directive, more than two years after the deadline for transposition and more than one year after publication of the first transposition draft, the time has come. Following the resolutions of the Council of Ministers and the Federal Council, it can be assumed that the Federal Procurement Act 2018 will enter into force by July 2018.

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.

The devil is in the details: transaction value draft guidelines
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • May 24 2018

In 2017 an additional merger threshold was implemented to catch cases that fall below existing turnover thresholds but where the consideration for the transaction exceeds a specified amount and the target is active in the relevant country to a significant extent. While the first cases and legal discussions have shown that there is considerable uncertainty regarding the application of this legislation, new draft guidelines have been published on the application of the new, quite difficult piece of legislation.

Privacy-related representations in M&A agreements
Schoenherr Attorneys at Law
  • IT & Internet
  • Austria
  • May 15 2018

Companies regularly store information about their customers, clients, employees, investors, partners and vendors. Privacy and data security are therefore important aspects of most M&A transactions. Although the risk of non-compliance with privacy laws may result in severe negative consequences, many M&A agreements still lack adequate privacy-related representations and warranties.

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.

Privacy-related representations in M&A agreements
Schoenherr Attorneys at Law
  • Corporate Finance/M&A
  • Austria
  • May 09 2018

Companies regularly store information about their customers, clients, employees, investors, partners and vendors. Privacy and data security are therefore important aspects of most M&A transactions. Although the risk of non-compliance with privacy laws may result in severe negative consequences, many M&A agreements still lack adequate privacy-related representations and warranties.

Right to clean air – latest developments
Schoenherr Attorneys at Law
  • Environment & Climate Change
  • Austria
  • May 07 2018

In general, the Austrian legal system does not give individuals the right to force the legislature to act in a specific way or pass concrete laws. Normally, only political pressure can combat inaction. However, when it comes to air quality, things are different. The Austrian Higher Administrative Court has declared that individuals who live in a territory where the air pollution limits are exceeded have the right to demand that measures under the Air Immission Protection Act be enacted or amended.

Proposed amendments to gas ordinances and balancing system
Schoenherr Attorneys at Law
  • Energy & Natural Resources
  • Austria
  • May 07 2018

To comply with the applicable EU regulations, E-Control recently published draft amendments to the Gas System Charges Ordinance 2018 and the Gas Market Model Ordinance. In response to international criticism, E-Control also proposed a redesign of the Austrian gas balancing system. In order to implement these amendments in the current Austrian gas market, a proposal to establish a virtual interconnection point at Baumgarten has also been drafted.

Fat-burning injections – medical information from beauticians
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • April 25 2018

A client recently sued her beautician because of an unsuccessful fat-burning injection treatment. The first-instance court granted the plaintiff two-thirds of her claim, holding that the defendant had had the same obligation as a physician to provide medical information on the risks and complications. However, as the plaintiff had been aware of the defendant's inexperience, she was responsible for the contributory fault, which reduced her claim by one-third.

Proposals to alter national Data Protection Act
Schoenherr Attorneys at Law
  • IT & Internet
  • Austria
  • April 24 2018

Members of Parliament recently filed an application to amend the Data Protection Act 2018 in order to clarify certain aspects which have led to confusion over the past couple of months. In addition to several provisions relating to competence, the proposed act, among other things, contains a rephrased version of the fundamental right to data protection, introduces the mandatory appointment of data protection officers and suggests enabling the matching of images with explicit consent.

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's stance on applicability of agreements conferring jurisdiction
OBLIN Attorneys at Law
  • Litigation
  • Austria
  • April 03 2018

Article 23(1) of the EU Brussels I Regulation sets out minimum requirements for contractual agreements. In particular, the requirements seek to ensure that agreements conferring jurisdiction do not become part of the contract without the knowledge of all of the parties. In a recent case involving the international chemicals industry, the Supreme Court had to consider whether the formal requirements in Article 23(1) had been met.

FMA publishes new circulars concerning PRIIPS and remuneration policies
Schoenherr Attorneys at Law
  • Insurance
  • Austria
  • March 13 2018

The Financial Market Authority (FMA) recently published a new circular concerning key information documents for packaged retail and insurance-based investment products. The FMA had already published a revised version of its circular on sound remuneration policies and practices on January 19 2018.

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.

Medical confidentiality and right to refuse to give evidence
Preslmayr Attorneys at Law
  • Healthcare & Life Sciences
  • Austria
  • February 28 2018

In general, a healthcare professional may testify on observations made in respect of a patient only if he or she has been released from the obligation of confidentiality by the patient personally. However, there are a few limited exceptions to this general rule. The Supreme Court carefully applied these exemptions in a recent decision on the hypothetical release by a deceased person.

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.

A blessing in disguise?
Preslmayr Attorneys at Law
  • Competition & Antitrust
  • Austria
  • February 01 2018

To date, the law contains no definition of 'implementation' in relation to mergers. There has been much debate in doctrine regarding whether implementation should be defined broadly as the mere possibility of influencing the target's behaviour, or more narrowly as the actual exercise of such influence. The Cartel Court's case law has followed the narrower definition. However, a recent Supreme Court decision has clarified the matter and reached a different conclusion.