Latest updates
Leucopenia medicine and reimbursement code
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 11 March 2020
A landmark Supreme Administrative Court decision concerning Onpro Kit, a medicine for treating chemotherapy-induced leucopenia, provides further clarity on the inclusion of medicines in the Main Association of Austrian Social Security Institutions' reimbursement code. The court examined the special circumstances in which a medicine is inappropriate for use in the course of medical treatment because it is designated for use predominantly in hospital treatments.
Family business and group privilege
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 27 February 2020
The cartel prohibition applies to activities between independent undertakings; however, it does not apply to activities between a controlling and a controlled undertaking, as such a subsidiary would not enjoy economic independence. This concept is referred to as 'single economic entity', which such a 'family' of undertakings may enjoy. In a recent case, the Supreme Court reviewed the question of whether such a concept would also apply in relation to a jointly controlled undertaking.
Digital health: proposal to amend Health Telematics Act
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 19 February 2020
The Ministry of Health recently provided Parliament with a draft amendment to the Health Telematics Act for public consultation. The proposal aims to remedy a number of challenges relating to Austria's existing immunisation system through the introduction of electronic immunisation cards and a central register of vaccinations.
'Medical meets Beauty' – recent decision on dental sector advertising
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 27 November 2019
The Austrian professional rules for dentists are strict and restrictive and permit advertising only within tight limits. Recent case law suggests that the Chamber of Dentists is highly active in enforcing both the Directive on Advertising and the Dental Act. Under the directive, print media ads must not exceed quarter of a page and dentists must not use unobjective advertising (eg, ads which promise patients non-dental advantages or services).
Alternative medical treatments and compassionate use
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 25 September 2019
Patients who are beyond treatment under the standards of conventional medicine often seek help from alternative medical treatments; however, these methods pose not only medical risks for patients, but also legal risks for doctors. A recent Supreme Administrative Court decision appears to favour a liberal approach to new therapies and compassionate use and enhances the possibilities for developing new therapies and alternative medicines in future.
Amazon slightly changes course
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 15 August 2019
Amazon has offered to change its terms and conditions following a series of Federal Competition Authority (FCA) investigations regarding business practices on the 'Amazon.de' marketplace. The FCA conducted an extensive market survey in which approximately 400 of the top-selling Austrian marketplace traders on 'Amazon.de' were interviewed in writing and via telephone. The survey results showed that Amazon had market power for a representative selection of larger Austrian marketplace traders.
Maintaining original medicinal products in Reimbursement Code
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 24 July 2019
When a generic is added to the Reimbursement Code, the product manufacturer or authorised distributor must reduce its price in order for the product to remain therein. If the Main Association of Social Security Institutions and the product manufacturer or authorised distributor cannot agree on a price, the product will be removed from the Reimbursement Code. A recent Supreme Court decision provides important considerations for maintaining original medicinal products in the Reimbursement Code.
Cannabidiol in food and cosmetics
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 15 May 2019
While there are signs of greater liberalisation with respect to hemp use internationally, the Austrian government has resisted this trend. In October 2018 the Ministry of Labour, Social Affairs, Health and Consumer Protection published a decree outlining its legal opinion on product regulations which prohibit CBD use in food and cosmetics. However, rather than providing legal certainty, the decree merely reflects headlines relating to the government's narcotics programme.
Social security system to undergo restructure – but will it achieve cost savings?
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 20 March 2019
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.
Fig leaf for 'naked' cartel
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 24 January 2019
A recent Cartel Court decision demonstrates how a long-term relationship between Semperit and a group of Thai companies turned into an equally lengthy disagreement, which came to a decisive turning point in the courts. The final blow landed with a decision by the Federal Cartel Authority, which imposed a fine of €1.6 million on Semperit for violating the Austrian Cartel Act and Article 101 of the Treaty on the Functioning of the European Union.
Amendment to Act on the Medical Profession
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 23 January 2019
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.
Misleading comparative advertising of drugs
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 28 November 2018
The Supreme Court recently ruled in an interesting case relating to comparative advertising. The court ultimately found that the challenged announcement was 'comparative advertising' within the meaning set out in Section 2a(1) of the Unfair Competition Act, as it directly and indirectly identified a competitor and its goods and services. The decision follows the letter of the law and perfectly summarises the legal structure regarding comparative and drug advertising in Austria.
No liability for in-depth specialist knowledge
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 07 November 2018
The Supreme Court recently provided an extensive description of the principles of medical liability and held, in concrete terms, that the standard of care principle must not be overstretched. The court confirmed that the expert liability provided for in the General Civil Code is based on an objective standard and thus depends on the usual diligence of the persons who carry out the activity in question. As such, the performance standard of the occupational group concerned will be a decisive factor.
Detox capsules
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 05 September 2018
The Supreme Court recently ruled on the advertising of a product which sits in the grey zone between medicinal products, medical devices and foodstuffs. Among other things, the plaintiffs had originally requested that the defendant be prohibited from offering and distributing products containing zeolite and bentonite as medical devices if they were not authorised as such, including disease-related information in the advertising of those products and promoting the products as "vegan, lactose-free and gluten-free".
David versus Goliath: FCA submits draft guidelines on good conduct of entrepreneurs
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 30 August 2018
The Federal Cartel Authority (FCA) recently published for consultation draft guidelines on the good conduct of entrepreneurs. Generally, neither the practices nor the laws as described by the FCA are new. The major issue is fear: smaller and less aggressive enterprises are afraid to lose business if they stand up to their dominant contractual partners in cases where the loss of a contract could lead to their financial collapse.
Spiritual healing – no (illegal) quackery
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 27 June 2018
The delineation between medical treatment and quackery is not always easy to draw. A recent Supreme Administrative Court decision has brought some clarifications as to what constitutes legitimate medical treatment as opposed to illegal quackery.
The devil is in the details: transaction value draft guidelines
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 24 May 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.
Fat-burning injections – medical information from beauticians
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 25 April 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.
Medical confidentiality and right to refuse to give evidence
Preslmayr Attorneys at Law- Healthcare & Life Sciences
- Austria
- 28 February 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.
A blessing in disguise?
Preslmayr Attorneys at Law- Competition & Antitrust
- Austria
- 01 February 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.
