In early 2019 the Supreme Court passed three decisions confirming and clarifying its 2017 decision which had limited landlords' right to request a location surcharge for rent-controlled apartments in desirable neighbourhoods. Based on the court's judgment, approximately 100,000 apartments no longer qualify for the location surcharge. However, the court's vague criteria for determining whether a neighbourhood is considered above or below average leave scope to include additional indicators.
The Supreme Court recently confirmed an appellate court's decision and ruled that a school teacher who had moonlighted as a brothel manager had been eligible for termination because this sort of behaviour could be considered a breach of trust and damaging to the school's reputation. The case was eventually decided in view of the perceived criminality of sex workers and their employers among the general public. However, this perception arguably depends on who is asked.
The information assessed when preparing the latest Flexibility and Storage Market Report on the Austrian gas market suggests that the current competitive situation does not require regulated access to storage facilities. The sufficient availability of storage capacity, customer-oriented product development, market-oriented price formation and offered quantities form a market characterised by competitive pressure.
The Supreme Court recently dismissed an insolvency administrator's complaint challenging the enforcement of an account pledge provided to a bank as security for a notional cash pool arrangement. The court's guidance on the advantages of cash pooling arrangements and on contractual minimum requirements must be considered when structuring new or reviewing existing cash pool arrangements of any kind.
There have been a number of recent legislative developments in Austria, including amendments to the Austrian Enforcement Act, which have granted certain parties access to data about pending enforcement proceedings. Further, the Supreme Court has confirmed that the res judicata effect of a foreign judgment applies at all stages of proceedings conducted in Austria.
The Supreme Court recently considered the validity of a hybrid arbitration agreement which provided for the formation of a tribunal under the International Chamber of Commerce Rules of Arbitration to arbitrate at the Vienna International Arbitral Centre. In this context, the court also considered the consequences of violating procedural rules agreed by the parties and the tribunal's failure to issue a reasoned award.
Austria has no domestic legislation that directly applies to virtual currencies, although operations using cryptocurrencies may fall under existing laws. For instance, platforms for purchasing crypto assets which settle payments in euros require a licence under the Payment Services Act 2018. Purely technical services would not be covered by these licensing requirements, but would most likely be captured by the requirement for a general trade licence necessary for carrying on a trade in Austria.
For the first time, the Supreme Court has upheld a security right granted under German law, even though the asset had been transferred to Austria. Previously, such rights were terminated once the asset was moved from Germany to Austria. The decision will substantially facilitate the financing of companies with cross-border business.
An employee recently sued for damages and compensation for gender discrimination when his job application was rejected because he had long hair. Originally unsuccessful, when the employee learned that the defendant's employee handbook contained rules on employees' outer appearance, he sued again and succeeded, as the Supreme Court found that the employee handbook was prima facie evidence of gender discrimination.
The Austrian regulatory authority E-Control is responsible for ensuring an equal energy market and a fair market price. Each year E-Control reviews and defines the system charges for the use of electricity and gas networks on all network levels. The System Charges Ordinance 2019 and the Gas System Charges Ordinance 2019 bring further relief to system charges.
The national regulatory authority E-Control recently published its consultation document on the implementation of the network code on harmonised transmission tariff structures in Austria. The document is structured in line with the Agency for the Cooperation of Energy Regulators consultation template. However, it appears that E-Control paid little attention to maximum transparency and traceability when setting transmission tariffs.
The Supreme Court recently had to decide whether the infringer of a registered Community design had to hand over the entire net profit or just a share of profit earned due to its use of an infringed design. The decision has great practical importance, as it gives IP rights holders clear guidelines regarding what to expect when claiming compensation for an unlawful use of their rights.
Until 2018, Austria had up to five different cancellation rights for insurance policyholders, plus the cancellation right pursuant to Section 8 of the Distance Financial Services Act. Thus, the legal situation was confusing. However, this has finally changed. Since 1 January 2019, a new Section 5c of the Insurance Contract Act provides for one unified cancellation right.
The Austrian social security system has been characterised by regional and occupational fragmentation and the domination of employee representatives. However, a recent amendment to the Social Security Act proposes merging the provincial social security institutions with the company insurers into one Austrian Health Insurer, which will be the only provider of employee health insurance.
The Constitutional Court recently dealt with a complaint by an electric vehicle owner who had exceeded an Air Immission Protection Act speed limit. The driver claimed that his vehicle emitted no air pollutants and that the emission-dependent speed limit did not apply to him. The court disagreed. In response to this decision, the federal government created a legal exception for electric cars. However, whether all federal states will introduce an exception to the act's speed limit for electric cars remains unclear.
'Influencer marketing' means taking advantage of bloggers and other persons who have their own social media channels to promote goods and services. While the concept of transmitting arguably hidden advertising is problematic, there are many variations of this and the lines between hidden advertising and personal opinion are often blurred. As such, the Advertising Council recently issued guidelines for dealing with influencer marketing as a specific means of marketing communication.
The European Court of Justice advocate general recently confirmed that the Austrian regulation which sets out that Good Friday is a paid public holiday only for members of four specific churches is discriminatory. Further, the advocate general concluded that each affected employee could claim holiday pay for past periods, unless such claims were already time barred, in which case claims could be brought against the Austrian state.
The two chambers of the Austrian Parliament recently adopted the government bill on the amendment of the Act on the Medical Profession. The amendment will enter into force following its publication in the Law Gazette, which is expected in late January 2019.
In order to ensure that gas supplies are secure and to achieve a high level of capacity availability, the Gas Act requires the market area manager (MAM) to prepare an annual coordinated network development plan. The MAM recently submitted a draft version of the 2018 plan to E-Control. The latest plan ensures that, among other things, the supply of gas to end consumers is protected, the line capacity is considered and transport requirements are met.
It is widely understood that the Austrian concept of 'social partnership' (ie, the system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations. The social partnership recently agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be forthcoming.