Following amendments to the Working Time Act, it was unclear whether the new statutory regime regarding working time overrides collective bargaining agreements that have not been adapted to the new maximum work hours and provide for a daily maximum of 10 working hours for flexitime. In the first decision on this issue, which will have far-reaching consequences, the Supreme Court has clarified all relevant questions regarding the collective bargaining agreement for metal workers.
The Supreme Court recently considered whether the fact that an arbitrator and a party counsel in one arbitration acted as co-counsel in another unrelated arbitration cast doubt on the arbitrator's independence and impartiality and thus disqualified him from acting as arbitrator in the arbitration under review. In its decision, the court correctly acknowledged the reality of the Austrian arbitration scene, which results in frequent contact between practitioners.
From 1 January 2020, bike couriers' employment relationships will be governed by a newly enacted collective bargaining agreement. Bike couriers in Austria now enjoy rights and benefits which are similar to employees in other sectors. While this is good news for bike couriers, it remains to be seen whether customers will have to pay the bill because of increased prices for courier services.
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.
Parliament recently passed a new law that grants fathers a legal entitlement to one month off work following the birth of their child. Dubbed the 'daddy month' by the media, this entitlement seeks to fill a gap that puts fathers at a disadvantage when it comes to childcare immediately following the birth of their child.
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.
A new provision in the Vienna Building Code recently entered into force, rendering short-term letting – including through rental services such as Airbnb – illegal in large areas of Vienna. Further, under the new provision, all parts of residential zone buildings that were being used for residential purposes when the provision entered into force – or were built thereafter – may be used only for residential purposes. That said, the new provision may be unconstitutional.
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 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.
Under the Insolvency Act, once a restructuring plan has been confirmed, the debtor is discharged from its debt and is subsequently prevented from paying its creditors their deficiency or repaying other granted benefits. Consequently, any claims that were not registered during the insolvency proceedings – even if they should have been – fall under this restriction and cannot be repaid. That said, exceptions to the rule exist.
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 Insolvency Act provides insolvency administrators with an abundance of tools to challenge any actions committed by a debtor during a crucial period prior to the opening of insolvency proceedings. Two recent Supreme Court decisions summarise the existing judicature and further clarify the elements of avoidance due to preferential treatment.
The Supreme Court recently set out clear principles regarding the protection of a work of visual art under the Copyright Act where technical functions played a role. In its decision, the court explained that the assessment as to whether a (visual) piece of work is actually protected by copyright must be assessed by the court as a legal issue only. There is no room to consider the opinion of experts or any other third parties.
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.
Before the most recent update to the online FAQ section by the responsible authority, the question of whether Beneficial Ownership Register Act compliance is an insolvency administrator's duty was unclear. Due to the tight timeframes for complying with the act and the range of practical problems arising from it, the question has caused headaches for insolvency law practitioners in Austria.
Under Austrian law, Good Friday is a paid public holiday only for members of four churches. An employee who belonged to none of these churches took issue with this and sued his employer. The case eventually reached the Supreme Court, which requested a preliminary ruling by the European Court of Justice (ECJ). In his recently issued opinion, the ECJ advocate general delivered what will likely also constitute the court's position on the matter.
The Supreme Court recently clarified the circumstances in which the burden of proof regarding the exhaustion of trademark rights shifts from the defendant to the trademark owner. It made clear that unless the defendant can prove a concrete risk of partitioning markets, it is up to the defendant to prove that the trademark rights relied on by the plaintiff are exhausted. This should be borne in mind when raising this defence.
The City of Vienna recently announced its intention to reform the building code. Some building owners consider it unfair that strict maintenance obligations and rent limits apply only to old buildings, whereas buildings constructed after 8 May 1945 can be let at market rent. As a result, many building owners have chosen to tear down historic buildings and erect new concrete and steel structures in their place. Therefore, one of the aims of the reform is to protect the city's historic buildings.