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

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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

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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

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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

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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.

New Publication on the Subject of Energy Law Grid Operators’ Line Rights

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We are pleased to announce that Dr. Georg Rihs has published an article in the professional journal Recht der Umwelt (RdU) on the subject of pipeline rights and easements of (electricity) network operators (link).

The article deals with the legal basis for the use of third-party land by electricity grid operators. In the past, network operators have often based their claims on the fact that they are “obvious easements” (lines, pylons) on the land of others. However, such easements are only granted to a specific person who exercises them. A legal succession or a change on the part of the electricity grid operator may lead to the expiry of this easement.

Case law also supports the assumption that private-law line rights/obligations do not automatically pass to a legal successor.

Landowners whose land is encumbered by lines can question the legality of the network operators’ line rights on their land.

Please feel free to contact us if you have any questions about third-party pipeline rights on your land!

Tobacco Monopoly: Federal Procurement Law Applicable!

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Our law firm has achieved another landmark victory for the rule of law: In its decision of 20 July 2021, Ra 2019/04/0231, the Administrative Court pronounced in a strengthened senate that the Federal Procurement Act for Concessions must be applied to the award of tobacconists or appointment of tobacconists within the framework of the tobacco monopoly.

In Austria, the award of tobacconists’ licenses was decided by the Monopolverwaltung GmbH (MVG GmbH). The difficult-to-comprehend and non-transparent awarding practice has recently also been questioned in media reports.
High-turnover tobacconists generate seven-figure revenues from the sale of tobacco products alone. In addition, the operation of a tobacconist’s shop enables lucrative sideline business such as the sale of lottery tickets etc. Currently, tobacconists are appointed practically for life.
Accordingly, traceability and transparency are important in the awarding of tobacconists’ contracts.

Tobacco monopoly: Court of Audit criticized awarding of tobacconists’ contracts

In the past, the Court of Audit has strongly criticized the awarding practice. Neither the legislature nor the administration has responded to this criticism. As in the past, the monopoly administration alone has been responsible for awarding contracts within the framework of the tobacco monopoly (based on the Tobacco Monopoly Act, or TabMG for short), which dates back to the post-war period. The special rights originally granted as a supply for war-disabled persons increasingly receded into the background in the allocation processes. The legislator did not react to the changed market conditions.

On the occasion of gross abuses in the award of some tobacconists’ contracts, our law firm initiated the first ever review proceedings under the BVergGKonz 2018 and demanded the application of the award regime for concessions based on Directive 2014/23/EU on the award of concessions or the Federal Act on the Award of Concessions (BVergGKonz 2018) adopted in implementation of this Directive.
The Federal Administrative Court rejected several of these requests for review on the grounds that the concessions were not service concessions, but a legal institution of a separate kind that does not impose any public interest obligations on tobacconists.

Administrative Court: BVergGKonz 2018 to be applied.

The Administrative Court has now corrected this ruling practice: In fact, numerous obligations in the public interest are imposed on tobacconists, in particular in the sense of supplying the population with tobacco products within the framework of the tobacco monopoly. For this reason, the monopoly administration GmbH must comply with the Federal Public Procurement Act for Concessions (BVergGKonz 2018). The legal protection instruments of the BVergGKonz 2018 also apply without restriction to the award of tobacco concessions.

We are pleased to have achieved this groundbreaking success in the field of public procurement law or public procurement law for concessions for our client.
Should you apply for a public concession, we will be happy to advise you and are also at your disposal in review proceedings!

Our success was reported by “Die Presse”, ORF, “Der Standard” and others.

 

 

Supreme Court for Civil Matters: Discrimination against graduates of cross-border cooperation studies unlawful!

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We are pleased to announce a positive decision in a lengthy civil case which we were able to obtain for our client, an employee of the Austrian National Bank (Oesterreichische Nationalbank, short: OeNB). We successfully enforced that the completion of an university degree abroad (in this case: cross-border cooperation course at the Mittweida University of Applied Sciences in Germany) must be fully taken into account when classifying the employee in the internal salary scheme of the OeNB. The employer was obliged to pay the difference in salary for the last three years in arrears. The Supreme Court followed our reasoning. It thus strengthens the Bologna system and enables the crediting of degrees acquired by employees in the context of cross-border cooperation courses of European universities outside Austria.

In its decision of 25 November 2020, 9 ObA 58/20z, the Supreme Court clarified that a graduate of a cross-border cooperation course is not permitted to be treated less favourably in terms of internal salary classification than a graduate of a domestic university.

The decisive factor for this decision was the incorrect classification of an employee of the Austrian National Bank in the internal salary scheme. The employee had studied at a German university and obtained the title of Master of Science (MSc) there. However, as this was not a degree from a domestic college or university, the employer did not recognise his education as a fully-fledged course of study. The employer only classified him in his salary scheme as a high-school graduate (in Austrian German: Maturant) and not as a university graduate. This resulted in a large difference in salary over the years.

The Supreme Court considered this disadvantageous position as discrimination against graduates of studies within the framework of cross-border inter-European cooperation studies, which is why a reclassification of the employee was necessary and the salary difference had to be paid to him by the Austrian National Bank.

Arabische Kultusgemeinde Österreich (AKÖ) – unlawful decision of the (governmental) department for religious affairs (Kultusamt) overturned by the Administrative Court Vienna

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We have a great success to report in a legally demanding case of constitutional law, which is also explosive in the media:

In a decision of 21 April 2021, the Administrative Court Vienna overturned the decision of the (governmental) department for religious affairs (Kultusamt) of 7 June 2018, with which it had withdrawn the legal personality of the Arabic Religious Community Austria (Arabische Kultusgemeinde Österreich, short AKÖ).
The Administrative Court stated that all formal requirements (number of mosque facilities, worshippers) were fulfilled by the AKÖ.
The Administrative Court based its findings on the confirmation of the Islamic Religious Community Austria (Islamische Glaubensgemeinschaft in Österreich, short IGGÖ), which examined and confirmed the formal requirements according to intra-religious community law.

The decision of the Administrative Court marks the end of a lengthy procedure.

In a press conference on 8 June 2018, the then Minister of the Interior (Kickl), the Federal Chancellor (Kurz) and the State Secretary for Cultural Affairs (Blümel) had announced the “closure” of 7 mosques of the Arabic Religious Community Austria (AKÖ) as a blow against political Islam (link).

On the same day, the Kultusamt issued a decision to cancel the legal personality of the AKÖ. The Kultusamt justified this with

  • allegedly questionable sermons in a mosque of the Arabic Religious Community Austria (AKÖ) and
  • an allegedly insufficient number of members and mosque facilities, whereby the AKÖ violated the constitution of the IGGÖ.

In a manner questionable under the rule of law, the Kultusamt excluded the suspensive effect of legal remedies in order to give immediate effect to its decision.

Due to our successful appeals against the decision, the Vienna Administrative Court made two decisions:

The Kultusamt appealed against the substantive decision of the Vienna Administrative Court with an extraordinary appeal to the Administrative Court (“Amtsrevision”).
The Administrative Court referred the matter back to the Administrative Court. The latter was to examine whether the formal requirements for the existence of the religious community (number of members and mosque facilities) were met (Supreme Administrative Court, 30 January 2020, Ro 2019/10/0026-5).

On 21 April 2021, the Vienna Administrative Court held an oral hearing. At the hearing, the IGGÖ confirmed that, after a new examination, the AKÖ fulfils all formal requirements for legal personality according to the Islam Act 2015.
In the hearing of 21 April 2021, the Administrative Court annulled the original decision of the Kultusamt, which now had to be decided again, as unlawful.

The decision is a great success for our law firm:

  • The Administrative Court confirmed the rights within the framework of the autonomy and self-administration of the IGGÖ as an Islamic religious society. The Administrative Court examined the formal prerequisites for the legal personality of the religious community solely on the basis of the IGGÖ’s information about the ability to self-preserve and the existence of the religious community. A more detailed examination by the Administrative Court or the Kultusamt was not carried out.
  • The status of the religious communities as parties in proceedings concerning them was confirmed by the Federal Administrative Court and the Administrative Court Vienna.

We are happy to advise on legally demanding and complex matters such as association and religious law!

 

Dissolution of an Islamic Association as a Result of the Terrorist Attack of 2 November 2020 Suspended

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Dr. Georg Rihs is pleased about another successful intervention in a current religious law case: due to the representation in the appeal proceedings, the Vienna Provincial Police Directorate as association authority revised the dissolution of the Islamic “Association for the Promotion of Islamic Culture”.
The success solidifies the firm’s reputation in complex administrative and religious law proceedings and in connection with proceedings under the Islam Act 2015.

As a result of the terrorist attack on 2.11.2021, the Vienna Police Directorate, as the association authority, dissolved two Islamic associations with immediate effect by means of a mandate notice without any preceding investigative proceedings.
The association “Verein zur Förderung der islamischen Kultur” (Association for the Promotion of Islamic Culture), which operates the Tewhid Mosque in 1120 Vienna, Murlingengasse 61, was one of these two associations. The Vienna Regional Police Directorate justified the immediate dissolution under the Associations Act by stating that the assassin had visited the mosque in 1120 Vienna before the attack.

The dissolution of the association also meant that the Islamic Religious Community of Austria (IGGÖ) withdrew the mosque’s legal status as a “mosque community” under intra-religious law.
The association’s officials filed a timely appeal against the decision to dissolve the association. This appeal did not have a suspensive effect. This means that the association was deprived of its legal personality for the duration of the proceedings.

The Vienna Provincial Police Directorate now had to revoke the mandate notice after a thorough examination of the facts. It determined that no persons with Islamist extremist ideology held functions in the association or were active in a supportive capacity for the mosque. At no time did the association actively call on individuals to participate in armed jihad in crisis areas or encourage them to do so. According to the findings of the association’s authorities, the sermons delivered at the mosque’s Friday services did not glorify jihad.

During the proceedings, it emerged that neither the BVT nor the LVT Vienna had any reliable evidence or reports that would have justified the measure of dissolving the association. Although the Vienna Regional Police Directorate, as the authority responsible for the association, invited the BVT and the LVT Vienna to submit evidence later in the proceedings – this evidence should have been available at the time of the dissolution of the legal entity – neither institution was able to provide any comprehensible justification for the dissolution. The Regional Police Directorate also critically noted that the BVT and the LVT Vienna – despite repeated requests – were unable to provide any information on alleged violations of criminal law by association bodies.

The association actively cooperated in this investigation and submitted all sermons held at church services in 2013 and 2020 in German translation.
The withdrawal of the dissolution of the association was the necessary consequence of the investigative proceedings of the association authority.

The association has thus been rehabilitated. It now again enjoys full legal personality under the Law on Associations.
After a relatively long procedure, the association has thus been restored to its legal status. It remains questionable and problematic that the proceedings took more than four months, although from the beginning there were no facts that would have justified dissolution. The association has suffered financial damage as a result of the (now proven) illegal dissolution with immediate effect.

It remains to be seen whether the mosque will be reinstated as a mosque community by the Islamic Religious Community.

Also Austrian press (daily newspaper Der Standard) has covered the subject-matter (Link).

Residence Permit „Art 50 EUV“

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The United Kingdom’s withdrawal from the European Union (known as “BREXIT”) and thus also from the EU’s internal market and customs union brings with it numerous innovations. As a result, the right of residence for British nationals and their family members has been largely changed. As of 1st January 2021, the United Kingdom is considered a third country from the perspective of the EU. The Austrian legislator has therefore created a separate residence permit (“Residence Permit Art 50 TEU”) for British citizens and their family members residing in Austria (see amendment to the Austrian Residence and Settlement Act, Federal Gazette I 56/2018.

The status of British citizens and their (close) family members is ruled by the so called „Brexit-Implementation-Regulation“ published by the Austrian Minister of Interior, Federal Gazette II 604/2020.

British citizens and their (close) family members from third countries may now apply for a „residence permit according to Art 50 Treaty of the European Union“.

This residence permit is intended to ensure that British citizens and their close relatives have the opportunity to live, work and study in Austria.

The requirements for obtaining this residence permit – as has already been the case for EU citizens – are the following:

  • gainful employment or sufficient financial means to finance a stay in Austria for oneself and one’s family members without depending on social welfare benefits or public allowances, as well as
  • comprehensive health insurance covering all possible risks in Austria.

German language skills are not a required for the application for the residence title “Article 50 EUV”.

Since January 2021, the application is possible until the end of December 2021. Thus, there is a sufficient time window for the application. The residence permit “Article 50 EUV” is issued in credit card format and is generally valid for 5 years. Of course, the acquisition of a permanent right of residence is still possible. Persons who have already acquired a permanent right of residence in Austria are granted the residence title “Article 50 EUV” for 10 years.

An initial application has to be made in person at the competent authority. An application with a valid residence permit in Austria presently (due to COVID19) has to be submitted via mail. In Vienna, the application has to be submitted to the Municipal Department 35 (MA35). The personal application is to ensure that the identity of the respective person is guaranteed.

Due to the current COVID19 restrictions, appointments with the immigration office must be reserved online.

As experts in immigration law, we have assisted many clients in obtaining residence permits according to Art 50 TEU.
Feel free to contact us if you would like us to assist you with your “Article 50” residence permit application.