Schoenherr

Vienna

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

Managers under trade law: how will Constitutional Court rule?
Austria | 15 January 2018

The Higher Administrative Court recently requested that the Constitutional Court repeal Section 39(2) of the Trade Act, as it infringes fundamental rights guaranteed by the Constitution. Austrian legal practitioners are already eagerly awaiting this judgment, which is expected to be issued during 2018.

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

Competition & Antitrust

Competition authority fines two breweries €8.5 million
Macedonia | 13 July 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 activity in 2015 at a glance
Macedonia | 03 November 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.

Competition commission publishes annual report
Macedonia | 29 October 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.

Drop in Competition Authority activities
Macedonia | 23 October 2014

The Commission for the Protection of Competition has recently experienced a slight drop in activities. Between May and August 2014 the commission rendered five merger clearances and imposed two fines in misdemeanour proceedings. Moreover, recently enacted amendments to the Competition Act further prescribe the procedures for the appointment of the commission's professional staff.

Competition Authority issues Rules of Procedure
Macedonia | 30 January 2014

The Commission for Protection of Competition issued the Rules of Procedure, aimed at regulating the commission's decision-making sessions. The rules set out that meetings are to be convened as needed by the president of the commission or on written request by at least three commission members. Voting is always public and the commission adopts its decisions by a majority vote of all members.

Competition Authority issues two bylaws
Macedonia | 03 October 2013

The Competition Authority has recently published two new bylaws concerning merger control. The Guidelines on Concentrations were published in order to promote a better understanding of the issues relating to concentrations of undertakings on the market, while the Instructions on the Manner of Submitting Merger Notifications concern the content and form of merger notifications.

Competition Authority – a slump in activity in first quarter 2013
Macedonia | 11 July 2013

Since the beginning of 2013 the Competition Authority has witnessed a slump in its workload. During the first quarter of 2013 the authority issued four decisions and published two news items, concerning Competition Authority staff participation at international conferences.

Macedonian Telekom fined for abuse of dominant position
Macedonia | 07 February 2013

The High Administrative Court of Macedonia recently confirmed that Macedonian Telekom had abused its dominant position by imposing excessive prices for the lease of digital lines. Macedonian Telecom did not have separate pricing for the lease of lines to its final consumers and wholesalers, which was considered an act of abuse. The procedure was concluded in this final ruling after six years of proceedings.

Competition Authority fines two drug wholesalers
Macedonia | 01 November 2012

The Competition Authority recently found that two drug wholesalers had submitted bids with prices that were identical up to two decimal places for the generic drugs Etoposide and Docetaxel. The authority held that the wholesalers' behaviour constituted a concerted practice and imposed fines.

Competition Commission adopts Guidelines for Issuing Phase I Clearances
Macedonia | 23 August 2012

The Commission for the Protection of Competition has adopted the Guidelines for Issuing Phase I Clearances. The commission's goal is to make the merger control procedure more efficient. If the commission determines that a concentration meets the criteria set out in the guidelines, it will usually issue a Phase I decision within 25 business days.

New bylaw amends content of merger notifications
Macedonia | 24 May 2012

The government recently adopted a new bylaw regulating the content of merger notifications. The main change relates to the provision of relevant data, stating that one set of data or documents must be provided in the filing process and a second set may be provided, but is not required.

Competition Authority: 2011 Progress Report
Macedonia | 29 March 2012

Macedonia seems to be making significant efforts in the harmonisation of national legislation with EU requirements in the area of competition. The 2011 Progress Report concluded that "in the field of mergers and State aid the enforcement record has improved in quantitative terms", and that "good progress can be reported in the area of anti-trust, including mergers."

Competition Commission publishes annual report
Macedonia | 15 September 2011

The Commission for the Protection of Competition has published its 2010 annual report in which it outlines the developments that occurred in the previous year. The report also references a report by the European Commission regarding the enforcement of competition laws in Macedonia, which noted that although overall progress had been made, implementation of the law remains poor in the fields of cartels and state aid.

Commission issues guidelines on market definitions
Macedonia | 14 July 2011

The Commission for the Protection of Competition has adopted new guidelines for defining the relevant markets for the purposes of the Law on the Protection of Competition. The guidelines provide details of the way in which the commission will apply the concept of 'relevant geographical market' and 'relevant product market'.

Commission imposes fines for abuse of market dominance
Macedonia | 07 July 2011

The Commission for the Protection of Competition recently imposed fines on Macedonian Telecom AD, EVN Makedonia and ONE Telekomunikacijski Uslugi for abusing their respective dominant positions. Macedonian Telecom AD was found to have abused its dominant position in the market for fixed public telephone networks and services in Macedonia and was fined Md61.377 million (about €1 million).

Supreme Court rules in T-Mobile dominance case
Macedonia | 17 March 2011

The Supreme Court upheld a decision by the Administrative Court finding that T-Mobile had abused its dominant position in the call termination market. As a result, the Commission for the Protection of Competition fined T-Mobile €785,426. The commission also recently initatied proceedings against City Parking for abuse of a dominant position.

Guidelines on negotiating remedies
Macedonia | 21 October 2010

The Commission for the Protection of Competition has published guidelines outlining those remedies which are acceptable to the commission under Chapter III on Merger Control of the Law on Protection of Competition. The guidelines mainly elaborate on the mechanism for negotiating solutions for overcoming competition concerns arising in relation to specific concentrations.

Recent Commission for Protection of Competition developments
Macedonia | 01 July 2010

In the first half of 2010 the Commission for Protection of Competition assessed five merger control filings. Of those, four were cleared in summary proceedings and one transaction was classified as an intra-group deal and therefore declared to be non-notifiable. The commission also rendered three opinions on state aid, declaring one government intervention to be permissible.

Corporate Finance/M&A

Supreme Court facilitates financing companies with cross-border business
Austria | 15 May 2019

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.

Constitutional Court rules on Squeeze-Out Act's compatibility with Constitution
Austria | 31 October 2018

The Constitutional Court recently ruled on whether the Squeeze-Out Act is compatible with the Constitution. The plaintiff argued that certain provisions of the Squeeze-Out Act violate the Constitution because they restrict shareholders' property rights and the principle of equality (rights enshrined in both the Constitution and the European Convention on Human Rights). However, the Constitutional Court held that this was not the case.

Privacy-related representations in M&A agreements
Austria | 09 May 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.

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

Energy & Natural Resources

Amendments bring overall relief to system charges
Austria | 06 May 2019

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.

Consultation on implementation of network code on harmonised transmission tariffs
Austria | 29 April 2019

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.

New coordinated network development plan introduced
Austria | 17 December 2018

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.

Automatic permits for certain energy infrastructure projects
Austria | 03 September 2018

The proposed new Location Development Act aims to regulate a special selection procedure for individual, location-relevant projects (eg, electricity grids and power plants). While the economy rejoices over faster legal security, non-governmental organisations and lawyers have expressed doubts about the maintenance of the standard of other material laws and the legal admissibility of the government project.

Proposed amendments to gas ordinances and balancing system
Austria | 07 May 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.

New government energy programme
Austria | 15 January 2018

The new government recently presented its government programme, which sets out its framework and indicates the legislative projects that it intends to implement over the coming five years. As part of the programme, the government hopes to have 100% of the national electricity supply come from renewable sources by 2030. However, as there are no details on how this goal will be achieved, it remains to be seen what changes the energy sector will face.

New rules for mismatched unbundled capacities at interconnection points
Austria | 21 August 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 | 24 July 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 | 10 July 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 | 20 February 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 | 06 February 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 | 24 October 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 | 05 September 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 | 16 May 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 | 28 March 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 | 25 January 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 | 06 July 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 | 07 April 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 | 19 January 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

Electric vehicles exempt from emissions-reducing speed limits
Austria | 18 March 2019

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.

Parliament adopts comprehensive environmental package
Austria | 12 November 2018

Parliament recently adopted a new comprehensive environmental package comprising the Aarhus Participation Act, an amendment to the Environmental Impact Assessment Act and an amendment to the Federal Environmental Liability Act. With the new package, the legislature has attempted to manage the difficult act of balancing the necessary legal adaptations of administrative procedural law with EU law and creating a business environment that is nevertheless competitive.

Will new state targets lead to reduced environmental protection?
Austria | 03 September 2018

The Constitution provides so-called 'state targets', which are broadly diversified and include state targets on sustainability. The approval procedure for the third runway at Vienna International Airport has prompted the government to strengthen Austria as a business location. This should be achieved by amending the Federal Constitutional Law on Sustainability which, among other things, contains a state target on creating comprehensive environmental protection.

Right to clean air – latest developments
Austria | 07 May 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.

New outlines for water management and planning
Austria | 02 October 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 | 17 July 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 International Airport
Austria | 08 May 2017

The Federal Administrative Court recently hindered the plans for a third runway to be built at Vienna International 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 | 16 January 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 | 11 July 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 | 18 April 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 | 08 February 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 | 19 October 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 | 20 July 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 | 11 May 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 | 13 April 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 | 07 April 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.

Insurance

New unified cancellation right for insurance contracts brings legal certainty
Austria | 26 March 2019

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.

FMA publishes new circulars concerning PRIIPS and remuneration policies
Austria | 13 March 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.

Projects & Procurement

The time has come: Federal Procurement Act 2018 just around the corner
Austria | 12 June 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.

Imminent implementation of public procurement directives
Austria | 21 March 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 | 17 January 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 | 08 November 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 | 03 May 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 | 22 March 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 | 09 February 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 | 04 August 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 | 27 January 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.

Shipping & Transport

Automated driving: positive climate impact and recent efforts
Austria | 20 December 2017

The Paris Agreement sets the ambitious goal of achieving net zero greenhouse gas emissions in the second half of the 21st century. Therefore, worldwide traffic and transport must change. Despite these objectives, people tend to overlook the fact that automated driving is not only innovative and comfortable, but may also have an important impact on reducing greenhouse gas emissions in future.

Tech, Data, Telecoms & Media

Influencer marketing – Advertising Council adopts specific rules
Austria | 15 March 2019

'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.

GDPR implementing legislation in Austria
Austria | 07 December 2018

The EU General Data Protection Regulation (GDPR) has created a new understanding and awareness of data protection. Despite being a directly applicable legal act, the GDPR has created significant work for the Austrian federal legislature, which has chosen to impose it by implementing the narrow but general Data Protection Act and introducing amendments to ordinary legal acts individually. However, these amendments are essentially limited to wording adjustments and restrictions on data subjects' rights.

DPA's strict view on retention periods
Austria | 25 September 2018

The Austrian Data Protection Authority (DPA) recently published its first decision on retention periods following the enactment of the General Data Protection Regulation. The decision is final. The DPA had to decide how long a telecoms service provider must retain so-called 'master data' – that is, data required for the controller's legal relationship with the users of its services.

Privacy-related representations in M&A agreements
Austria | 15 May 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.

Proposals to alter national Data Protection Act
Austria | 24 April 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.

Draft Data Protection Amendment Act 2018 in appraisal
Austria | 30 May 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 | 01 November 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 | 06 September 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 | 04 March 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 | 20 August 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 | 26 March 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 | 30 October 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 | 15 March 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 | 09 November 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.