Art 20 TFEU – Union citizens’ right to family reunification may also apply to Austrian citizens

/in , /by

In a recent decision we helped a family to legally lead their common family life in Austria. Through our support, we were able to obtain a right of residence for the mother of two Austrian citizens. The granted residence permit also provided for the mother’s access to the Austrian labor market. We are aware of the importance and scope of our advice and representation for the family life of our clients and their private and professional future in Austria. We are all the more pleased about the success!

“Family members” as defined by the Austrian Settlement and Residence Act (NAG) basically only spouses and minor children

Family reunification with access to the labor market in Austria is generally only accessible to the next of kin (spouses, minor children). Relatives who do not belong to this group (e.g. parents, children of full age) are in principle not legally entitled to family reunification or can at best only obtain a residence title without access to the labor market (“Settlement Permit – [Further] Relative”).

If there are valid reasons, e.g. on the basis of the fundamental right to protection of private and family life (Art 8 ECHR) or on the basis of the rights of EU citizens (Art 20 TFEU), the Administrative Court has – however only in extreme and exceptional cases – affirmed a claim to family reunification and access to the labor market also for distant relatives (e.g. VwGH 24.3.2022, Ra 2018/22/0093).

Vienna Administrative Court grants residence permit family member for mother of an adult Austrian reunifier

In complex appeal proceedings before the Administrative Court of Vienna, we successfully enforced a client’s claim for family reunification. The Administrative Court of Vienna announced the decision immediately following the court hearing on January 18, 2023 (VGW-151/080/9065/2022-25).

The special feature of the family reunification finally granted (issuance of the residence title “family member”) is that

  • the sponsor is an adult Austrian citizen, and
  • the reunifying mother has obtained a residence title “family member” entitling her to regular employment (and not merely a “Settlement Permit – [Further] Relative”, which categorically excludes gainful employment in Austria).

The Administrative Court of Vienna considered the special close relationship and the health-related dependence of the daughter on her mother as decisive for the right to family reunification.

It applied the case law of the Court of Justice of the European Union (ECJ) to an Austrian citizen, although there was no so-called cross-border constellation (“freedom of movement constellation”).

The case law of the Court of Justice of the European Union, which we cited in the appeal proceedings, convinced the Vienna Administrative Court: “If a Union citizen (in this case the reuniting daughter) would be forced to leave the territory of the European Union in the event of a refusal of a residence title, close family members with whom the Union citizen has a dependent relationship have a right of residence (and access to the labor market).” Cf. ECJ 8.5.2018, K.A. et al, C-82/16; in Austrian court decsion VwGH 25.7.2019, Ra 2019/22/0017; on the assessment of the dependency relationship in detail also VwGH 17.6.2019, Ra 2018/22/0195).

No official appeal by the settlement authority (MA35) or the Federal Ministry of the Interior (BMI)

In the first-instance proceedings before the settlement authority (MA35), the authority still resisted and did not share our legal position.

After the decision of the Administrative Court of Vienna, the official parties (immigration office, in Vienna: MA 35; BMI) did not file an official appeal against the decision of the Administrative Court of Vienna. The official parties have thus conclusively accepted the legal opinion of the Vienna Administrative Court. This is a precedent-setting case, which will also point the way for future decisions of the Administrative Court of Vienna.

Living/working in Austria with residence title family members possible

In the meantime, the immigration office (MA35) has granted the applicant, i.e. the mother of the Austrian citizen, the residence permit „Family Relative“ applied for. The family can now live together in Austria. With the residence permit „Family Relative“, the mother has obtained a right of residence that entitles her to settle and work in Austria without the requirement for a work permit.

We are pleased that we have helped a family to live together in Austria in this way. This decision strengthens the right to family reunification and unity, fundamental rights and the rights of EU citizens derived from the case law of the Court of Justice of the European Union. It is to be welcomed in view of the general reluctance of the immigration offices to apply the case law of the ECJ on family reunification.

You are welcome to contact us if you are seeking family reunification with relatives and dependents from third countries and would like to obtain a suitable residence title in Austria for relatives from countries outside the European Union!

Annual Review 2022

/in , , /by

We have taken the turn of the year as an opportunity to review the past year and to recall our team’s successes for our clients.

In order to provide an insight into our wide-ranging and varied activities in the field of public law, we present the most important successes without claiming to be exhaustive.

Tobacco Monopoly Act, Federal Public Procurement Act for Concessions (BVergGKonz 2018).

As a result of our determined intervention for legal certainty and legal protection, the Administrative Court pronounced in 2021 that the Federal Public Procurement Act for Concessions (BVergGKonz) is applicable to the award of tobacco concessions. This landmark decision had (and has) serious consequences for the tobacco monopoly in Austria.

As a result of this decision, we are continuously conducting continued declaratory proceedings under the BVergGKonz 2018 before the Federal Administrative Court and the Constitutional and Administrative Court.

In its ruling of 21 July 2022, Ro 2020/04/0013, the Supreme Administrative Court confirmed our legal position in declaratory proceedings concerning what we consider to be the arbitrary revocation of an invitation to tender and restricted the scope for decision-making by Monopolverwaltung GmbH (MVG) in award procedures, in this case in connection with the revocation of an invitation to tender. In its ruling, the Administrative Court made binding statements on the interpretation of the Tobacco Monopoly Act 1996 (TabMG 1996). We have thus made a further contribution to legal development and certainty, as well as to legal protection in this sensitive area.

In the future, we will continue to vehemently oppose arbitrariness and lack of transparency in the area of the tobacco monopoly!

Civil Service Law

We were able to achieve a very satisfactory result for our client in one, long-standing civil service law case, which had already started in 2017.

With the ruling of 12 July 2022, W246 2210671-1, and W246 2210671-2, the Federal Administrative Court confirmed the application for the correct classification of our client in terms of salary law in the salary scale.

The subject matter of the proceedings was the classification of our client under salary law. Through our representation, we were able to achieve a correct classification for our client by the Federal Administrative Court. The service authority had to pay the difference to make up for the successfully challenged classification. At the same time, we were also able to obtain a statement from the Federal Administrative Court in favor of our client on the preliminary question of permanent service assignment under service law.

Construction Law

In the first quarter we obtained for our client before the Administrative Court the annulment of an order to stop a demolition before the Administrative Court.

The client had started the demolition of a house in Vienna, which had been built before 1 January 1945. With the amendment LGBl 37/2018 to the Building Code for Vienna, the demolition of buildings erected before 1 January 1945 was made subject to a permit requirement. The demolition had been notified as a notifiable measure even before the amendment to the BO f. Vienna came into force. The Viennese building authority (Magistratsabteilung 37) prohibited the demolition by a client after the amendment of the Building Code (BO) for Vienna. The Administrative Court of Vienna confirmed the prohibition notice.

We represented our client up to the Administrative Court. By decision of 15 February 2022, Ra 2020/05/0006, the Administrative Court upheld our appeal and overturned the prohibition notice.

A company had set up quarters for workers on the ground floor of a newly renovated house mainly inhabited by families. The building applicant only reported the structural adaptations in order to circumvent the obligation to obtain a permit and the right of consent of the co-owners.

We successfully represented a number of co-owners and applied for a declaration that the company was obliged to obtain a construction permit and that our clients were parties to the proceedings for the construction permit. In its decision of 23 November 2022, VGW-111/093/7563/2022-22 et al., the Vienna Administrative Court ruled in our favor and stated that the essential construction measures, in particular the change of dedication as a residential quarter, would have been subject to approval.

Settlement law/foreigners’ law/asylum law

In particular, our team successfully assisted numerous clients in the areas of settlement law, residence law, aliens law and citizenship law in its usual experienced manner.

In 2022, we assisted 68 clients in obtaining or extending a residence title in Austria.

In the area of citizenship, we helped 27 clients to enforce a claim for the granting of Austrian citizenship or for the granting of citizenship by notification (Section 58c StbG) for descendants of Nazi persecutees.

We have also not shied away from challenging negative first-instance decisions before the administrative courts and can look back with satisfaction on numerous administrative court decisions in favor of our clients in the past year.

We also have notable successes to our credit before the Supreme Administrative Court in 2022, and in 2022 for example

We consider the lifting of an eight-year entry ban by the Federal Administrative Court shortly before the turn of the year to be a particular success. The complainant, whom we successfully represented, has lived in Austria for decades, is married and has to care for 3 small children. The complainant is currently serving a criminal sentence. Based on our intervention, our position and representation at the hearing, the Federal Administrative Court judged the integration in Austria and the responsibility for the family living in Austria to be more important than the delinquency upon balancing the interests and applying a proportionality test. Deportation of the father and guardian of the family would have had an existential impact on the entire family.

We have also successfully represented clients in numerous administrative criminal proceedings and obtained the termination of the administrative criminal proceedings.

We are happy to share our joy about the successes on our website, so that you can inform yourself about our activities. For eleven years now, we have been working tirelessly and with dedication for our clients.

We would like to thank our clients for their trust and the outstanding commitment of our staff! The picture shows our team, consisting of Dr. Erich Rihs; Michelle Pfeiffer, LL.B. (WU); Erich Rihs, BA; Dr. Georg Rihs; Hannah Scheiring and Sophie Bachner (from left to right).

Please contact us if you have any questions regarding our offers and services. We would be happy to provide you with our expertise and experience to enforce your legal interests.

Public Procurement Law: Technical Contribution on Legal Protection in Continued Proceedings before the Federal Administrative Court (BVwG)

/in , /by

The legal protection of contractors in award procedures under the Federal Public Procurement Act for Concessions (BVergGKonz 2018) is a recurring topic. Therefore, we have dedicated an article to this current and important topic in the December issue of the Journal for Public Procurement Law and Construction Contract Law (ZVB).

In the article, we summarize our experiences and critical reflections on legal protection under procurement law in fortgese declaratory proceedings before the Federal Administrative Court. It is based on a decision of the Administrative Court (VwGH) in a case conducted by us, which supports the legal position of our client in a procurement procedure concerning a service concession under the Tobacco Monopoly Act (TabMG).

The finding of the VwGH and the lack of legal protection in public procurement law

On a regular basis and for quite some time, we have been conducting proceedings before the highest courts of public law (Administrative Court, Constitutional Court) in a specific area. These proceedings concern the awarding of contracts for tobacconists or the conclusion of order contracts for tobacconists under the Federal Public Procurement Act for Concessions (BVergGKonz) and the Tobacco Monopoly Act (TabMG).

In the process, we have found that the legal protection regime under public procurement law contains numerous pitfalls: Even if we have obtained a ruling supporting our legal position for our clients at the Supreme Court, the proceedings before the Federal Administrative Court are continued on the basis of a motion for continuation. The Federal Administrative Court must make a new decision in which it takes into account the legal opinion of the Supreme Court. In practice, this sometimes happens inadequately.

In this article, we point out the existing deficits in legal protection and present possible solutions for the legislature and administrative practice. Furthermore, we provide considerations on the relevance for the following damages litigation.

Our concern: Your legal protection in public procurement law

Our many years of expertise in public procurement law have led us to dedicate a separate article to the topic of legal protection under the Federal Procurement Act and BVergKonz. We would be pleased to represent you in the field of public procurement law in the best possible and well-founded manner. Through our publication activities, for which we draw from our legal practice, we contribute to the development of the law. This is also to the benefit of our clients.

Please do not hesitate to contact us if you wish to examine the legality of a decision made by a public contracting authority (such as the Monopolverwaltung GmbH in the area of the tobacco monopoly, but also others) and contest it.

Source PDF of the article

Merry Christmas and Cheers 2023!

/in , /by

For our Christmas party on 16 December 2022, we had dinner at the Casino in Kärntnerstraße and toasted to the joint successes of our team this year.

Afterwards, we enjoyed the cozy end in the casino and tried our luck in the games.

We are looking forward to new challenges for our team in the New Year 2023! Also in the New Year we will work together and efficiently to the satisfaction of our clients!

Photovoltaic systems – contribution to climate protection

/in , /by

Electrical Power generation with photovoltaic (PV) systems is considered environmentally friendly. PV systems as decentralized power generation plants relieve the public electricity networks.
By installing and operating a photovoltaic system, grid users can make a significant contribution to climate protection.

New market players – Renewable Energy Communities (REC) and Citizens‘ Communities (CC)

There are various ways to operate PV systems: For example, for the purpose of self-supply, as a joint generation plant or together with other grid users, as part of a Renewable Energy Community (REC) or as part of a Citizens‘ Community (CC).
For more information, visit www.energiegemeinschaften.at.

Permits for PV systems

PV systems require a permit under electricity law in accordance with provincial regulations, depending on the installation method and output. All Austrian provinces have set up corresponding service centers to advise project applicants. Links and information are available at https://www.klimaaktiv.at/service/beratung/energieberatungen.html.
Electricity permits are only not required if the installation is part of a commercial facility.
A building permit will also have to be obtained in many cases. Under certain circumstances, considerations of regional planning and the protection of the appearance of a locality may prevent the installation of a PV system or require special consideration.
The system operator must then apply to the responsible network operator in his supply area for network access or technically adapt an existing network access to the requirements of the system. A separate metering point is required to measure the amount of electricity fed into the grid and the amount of electricity withdrawn from the grid. This requires the conclusion of a corresponding network access agreement with the network operator.

Subsidies for PV systems under the Renewable Expansion Act (EAG)

Operating subsidies under the Renewable Expansion Act (EAG) are only available for systems with a bottleneck capacity of more than 10 kWp. Operating subsidies are awarded for PV plants within the framework of two annual tenders. The plant operator must submit an offer (“bid”). The bid must specify a certain quantity (“bid quantity”) at a certain price (“bid price”). The contract is awarded to the cheapest bids and bid quantities until the tender volume is exhausted.
For more information on the area of support for electricity generation from renewable sources under the Renewable Energy Expansion Act (EAG), please visit https://eag-abwicklungsstelle.at/.

Our legal expertise in the field of renewable energies and PV systems

Dr. Georg Rihs has intensively dealt with the legal basis and procedures in connection with PV plants for a lecture on 23.11.2022 in the context of the conference “Climate.Economy.Law” and for a conference contribution. The contribution is to be published as part of a conference volume.
In his work as a lawyer with a focus on public law, Dr. Georg Rihs regularly deals with cases relating to electricity law, plant law and public procurement law.

Contact us for further information or specific questions in connection with the construction and operation of a PV system, whether as self-supplier, as co-operator of a joint generation facility, a Renewable Energy Community or a Citizen’s Community!

presentation on solar power generation (23 Nov 2022) Focus on roof-top solar power plants

/in , /by

A panel of experts was invited to provide legal presentations on the topic „How may companies contribute to climate protection“ in an event organized by Attorney Mag. Silberbauer. The event was also supported by the daily newspaper „Der Standard“. „Der Standard“ has recently promoted the event. Please find further information under “Der Standard”.

Dr. Georg Rihs was asked to report on the latest developments in the field of energy law. Due to the climate crisis, the rising costs of electricity and the political motivation to subsidize renewable energy, the subject is highly topical.

In the past, we have regularely published and treated on topics related to energy law. Dr. Georg Rihs has published articles with focus on renewable energies and decentralized energy production and distribution (Link).

The presentation comprised an introduction into the European framework and the applicable Austrian regulations for solar power plants, like the electricity laws, the regulations on land use and construction and related civil law issues.

For us, the presentation provided an excellent occasion to present our expertise in the field of the regulations on renewable energy to a broader public. We also consider this presentation as a contribution to climate protection.

The presentation shall be published in a conference transcript and in a legal journal.

Please do not hesitate to contact us if you have legal questions regarding the installation of a solar power plant!

Facilitation of access to the Red-White-Red Card

/in , /by

Residence permit “Red-White-Red Card”: residence and work permit with one card

The Red-White-Red card is an attractive residence permit for qualified professionals who have a job offer from an Austrian company. The immigration office and the Austrian Labour Market Agency (AMS) assess an applicant’s professional qualifications according to a set of defined criteria. An applicant gets “credits” for an accomplished professional education, training and professional experience as well as English and German language skills. The job-offer by the Austrian company and the future employer have to fulfil certain criteria as well (minimum salary, qualified and adequate position in the company etc.).
The criteria are explained under www.migration.gv.at. Although the critera are clearly stated in the relevant regulations, administrative practice shows that the interpretation may differ. Good preparation of an application facilitate a positive decision by the immigration office and Austrian Labour Market Agency (AMS).

Facilitations since 1 Oct 2022

An amendment to the Austrian Residence and Settlement Act (“Niederlassungs- und Aufenthaltsgesetz”, short: “NAG”) and the Foreign Labour Act (“Ausländerbeschäftigungsgesetz”, short “AuslBG”), BGBl I 106/2022, has entered into force on 1 October 2022. The amendment is intended to counteract the shortage of skilled workers by relaxing the conditions for issuing the Red-White-Red Card and thus facilitating the access of skilled workers to the Austrian labor market. We present some of the most relevant amendments.

Reduction of the required minimum salary

In the case of the Red-White-Red Card for other key employees (“Rot-Weiß-Rot Karte für sonstige Schlüsselkräfte“), the age-related limit for the required salary will be abolished. After the new regulations come into force, all employees must therefore only prove that they have a gross salary of 50% of the social security maximum contribution base. The higher required amount for employees over 30 years of age will thus be eliminated. For the year 2022, the required salary will therefore be € 2,835 gross per month for all applicants. 

More “credits” for English language skills

In the case of the Red-White-Red Card for skilled workers in shortage occupations (“Rot-Weiß-Rot Karte für Fachkräfte in Mangelberufen”) and for other key employees (“Rot-Weiß-Rot Karte für sonstige Schlüsselkräfte“), additional points will be provided for English language skills if the predominant language at the work place is English. In these cases, therefore, English and German skills are assessed with the same number of points. 

Standardized proof of professional qualification

With regard to qualifications, in the future there will no longer be a distinction between a university degree and completed professional training for skilled workers. All employees will receive a uniform 30 points for completed professional training in the shortage occupation.

Minimum investment for start-up founders

When founding a start-up, only a share capital of € 30,000 instead of € 50,000 has to be proven in order to obtain a residence permit.

Professional experience

For all red-white-red cards, the evaluation of professional experience will be calculated in half years instead of whole years in the future.

The aim of these measures is to make it easier for qualified applicants to achieve the required points and thus to gain access to the Austrian labor market.
The changes are welcome for qualified professionals who want to settle in Austria and for Austrian companies.

We have assisted numerous applicants with applications for Red-White-Red cards unter the new and facilitated regulations.

If you need support, advice and representation in a procedure to obtain a Red-White-Red Card, we look forward to hearing from you!

Acquisition of Austrian citizenship by notification (§ 58c StbG): Extended opportunities for descendants of victims of National Socialism

/in /by

The Austrian Citizenship Act provides the possibility for descendants of victims of National Socialism to obtain Austrian citizenship by filing a complaint. Already several thousands of descendants, for example of Holocaust survivors, have obtained Austrian citizenship in this way. The Austrian legislator has now included further groups of persons in the circle of those entitled to citizenship in order to eliminate cases of hardship.

Naturalization for descendants of victims of National Socialism

Persons persecuted by the NSDAP for political, religious or other reasons during the so-called “Third Reich” and their descendants already had the possibility to obtain Austrian citizenship in a privileged way by notification according to § 58c StbG. The Austrian Ministry of Foreign Affairs and the Ministry of the Interior provided comprehensive information about the legal situation and thus helped to inform affected persons about the possibility of obtaining Austrian citizenship by means of notification (link Federal Ministry of Foreign Affairs, link Federal Ministry of the Interior).

Notifications could also be filed with Austrian embassies abroad (link Federal Ministry of Foreign Affairs).

Several thousands of new citizenships

The competent Austrian authority, i.e. the Viennese provincial government (Magistratsabteilung 35, or “MA35” for short) has already applied this provision many times. Numerous descendants of victims of National Socialism have since made use of this possibility. Several thousand descendants of victims of National Socialism from all over the world have applied for and received Austrian citizenship in this way.

The Austrian media have reported extensively on the successful procedures before the citizenship authority

(daily-newspapers articles of Der Standard, 29 August 2021, Der Standard, 20 Mai 2022, Kurier, 29 August 2021).

Retention of existing citizenship (dual citizenship)

Claimants are allowed to retain their current citizenship, e. g. the US or Israeli citizenship. This legal situation creates an exception to the fundamental ban of dual citizenship in the Austrian Citizenship Act (StbG).

Extension of the eligible group of persons to include descendants of persons who did not have a principal residence in the territory of the Federal Republic of Austria prior to their flight

Through the recent amendment to the Citizenship Act, Federal Law Gazette I 48/2022 (link Federal Law Gazette), the Austrian legislator has attempted to eliminate cases of hardship and objectively unjustified differentiations between different groups of descendants of victims of National Socialism.

Due to the narrow wording of the scope of application, so far only descendants of Austrian citizens who had their main residence in Austria before the expulsion were entitled to claim. This legal situation led to cases of hardship. Especially descendants of Holocaust-survivors who were abducted and encamped in Austria could not apply under this citizenship program. For example, the authorities negated the existence of a principal residence in cases where the persecuted ancestors were deported to Austria during the Second World War and interned in concentration camps here.

Precautions against unfair hardships

The Austrian legislator has addressed these cases of hardship and expanded the scope of the acquisition of Austrian citizenship by notification: Thus, descendants of persecuted persons who were Austrian citizens and did not have a main residence in the Austrian federal territory can now also acquire Austrian citizenship by notification. They have to proof that they were threatened by persecution by organs of the NSDAP or the authorities of the German Reich in the case of a return or even in case of their first entry into the federal territory of Austria.

This applies, for example, to descendants of persons who were persecuted by the National Socialists on account of their faith, their political views or for other reasons and who held Austrian citizenship. If they had not lived in what is now the federal territory of Austria before their escape but in one of the other successor states to the Austro-Hungarian Monarchy, for example in what is now the Czech Republic, Slovakia, Romania, Hungary or Western Ukraine, they are eligible for citizenship, given that they were prevented from returning to the territory of present-day Austria or entering Austria for political reasons.

The amendment to the Citizenship Act was published in the Federal Law Gazette I 48/2022 (link Federal Law Gazette). The new legal situation with the expanded group of eligible persons has been in force since 14 February 2022.

Evaluation of the facilitations in naturalization

The change in the legal situation is to be welcomed. The expansion of the scope of award of citizenship by notification for descendants of persons persecuted under National Socialism represents a further contribution to the elimination of historical injustice and reparation.

It remains to be seen whether proceedings conducted under the old legal situation and concluded negatively, in which the authority (Magistratsabteilung 35, or “MA35” for short) denied the acquisition of citizenship by notification, will be resumed as a result of the change in the legal situation.

We have already assisted numerous clients in obtaining Austrian citizenship on the basis of the Citizenship Act and the special regulations for descendants of persons persecuted under National Socialism.

Please contact us if you need support, advice and representation in proceedings for the granting of Austrian citizenship or for obtaining Austrian citizenship by notification pursuant to Section 58c of the Austrian Citizenship Act (StbG).

 

Excursion to the Austrian Constitutional Court

/in , /by

Last Monday, we visited the Austrian Constitutional Court (https://www.vfgh.gv.at/index.en.html) as part of our office excursion.

Despite the ongoing summer session of the Constitutional Court, we received a very friendly welcome there. Apart from our legal “daily business”, the interesting and expert lecture by the head librarian, Hon.-Prof. Dr. Josef Pauser, and the subsequent tour were an excellent opportunity for us and our staff to gain a direct and personal impression of the history, the working methods, the representative building and the importance of this Austrian supreme court.

Since we repeatedly submit appeals to the Constitutional Court in the name of and on behalf of our clients, the lecture complements our legal work and will remain a very good memory for us in our regular professional activities, which often include submissions to the Constitutional Court (complaints against decisions and legal norms).

The convivial lunch in the nearby courtyard of the Schottenstift was the pleasant finale of our law firm excursion.

Christmas Holiday

/in , /by

Dear clients,

Our office will be closed from Monday, 26 December 2022, to Friday, 6 January 2023. From Monday, 9 January 2023, on we will be open again at our usual opening hours.

We would like to thank you for the good cooperation in the year that is coming to an end and look forward to supporting you again in the new year in various legal matters.

Your RIHS Attorney Team