Arbeitskräfteüberlassung

Recent case law on the distinction between ‚hiring out‘ and (sub-)contracting according to Directive 96/71/EC on the posting of workers by foreign companies

/in /by

For foreign companies performing contracts in Austria, the distinction between „hiring out“ of workers and a works contract is essential: the legal relationship between contracting party and (sub-)contractor involves fewer administrative obligations and liabilities for the contracting party than the „hiring out“.

In important precedents the European Court of Justice (18 June 2017, C- 585/13, Martin Meat) and the Austrian Supreme Administrative Court (22 August 2016, Ra 2017/11/0068) ruled on the fundamental and legally relevant subject matters for the distinction between works contract and „hiring out“.

For this distinction, essential matter is

  • whether the remuneration varies in accordance with the quantity/quality of the services,
  • who is liable for services/works inconsistent with the terms oft he contract,
  • who determines the number of workers considered useful for the performance of a contract,
  • who gives the precise and individual instructions fort he performance of the services concerned.

As the Austrian Supreme Administrative Court demanded a comprehensive legal assessment on a case-by-case basis, there have been numerous decisions by the Austrian Administrative Courts on the details of the distinction.

In many cases, the Administrative Courts have suspended penalty decisions against contractors, based on the assessment that the finance police or the administrative authority have been wrong in presuming a „hiring out“ of workers rather than contracting (e.g. Administrative Court Niederösterreich, 10.12.2018, LVwG-S-523/001-2018; Administrative Court Tirol 5.2.2019, LVwG-2018/14/0803-1; Administrative Court Wien 13.6.2019, VGW-041/078/7475/201).

Due to the considerable fines and the related legal consequences – for instance in the context of participation in public tenders – any case should be accurately legally assessed in accordance with the recent case law. This may lead to a suspension of administrative penalty proceedings or at least a reduction of the fines.

[source image: ©Pixabay]

Brexit

BREXIT – residence permit for affected British nationals and their family relatives in Austria

/in /by

The so-called BREXIT, that is the United Kingdom’s departure from the European Union, – irrespective of a deal or a „no-deal“ – brings with it interesting questions regarding the right of residence in Austria. British citizens and their (non-EU) family relatives in Austria are concerned with the implications on their residence status in Austria: As the United Kingdom leaves the European Union, the right of residence for European citizens and their family members according to Directive 2004/38/EC ceases to apply. The same goes for the right of family reunion with British citizens.

According the Austrian Residence and Settlement Act („Niederlassungs- und Aufenthaltsgesetz“, short: „NAG“), British citizens hold a residence card as evidence of their right of residence („Anmeldebescheinigung“), their family relatives a card titled „Aufenthaltskarte“).

The Austrian legislator has passed an amendment to the Austrian Residence and Settlement Act for the event of a „no-deal“ BREXIT, regulating (inter alia) the effects of the BREXIT on the residence permits of British citizens and their family members. British citizens will have a special facility to be issued a „Red-White-Red card plus“. However, they must fulfil the requirements for a European Union’s right of residence at the time of the BREXIT. The special facility has to asserted within six months from the BREXIT.

Affected British citizens should get clarity on their legal right of residence in time and check if they meet the requirements for a change of their residence status after the BREXIT.

Please contact us if you wish us to assist you in case of a residence permit in connection with BREXIT.

[source image: ©ktsdesign]

Residence Permit – Student: Application, Evidence, Documents

/in /by

Summer time, vacation time – many students prepare for the coming university year 2019/2020. Many come to Vienna and plan to study at one of the renowned universities or colleges.

We gladly advise and assist in proceedings before the immigration authorities. Contact us early in order to avoid costly and risky mistakes like an overstay of the validity of your visa/visa-free stay.

Key words: residence permit student, application for a residence permit in Austria, duration of legal stay in Austria, proof of sufficient financial funds.

Students from outside the European Union planning to study in Austria have to apply timely for a “residence permit – student”.

An application may be submitted in Austria during their legal stay. However, submitting an application does not entitle the applicant to stay in Austria beyond the validity of his/her visa. The regular immigration regulations (e.g. maximum stay of 90 days in a period of 180 days) still apply.

The competent immigration authority (in Vienna: “Magistratsabteilung 35”) checks if the applicant has been legally staying in Austria at the time of application and afterwards. Even a short overstay may result in a rejection.

Frequently, the proof of sufficient financial funds for the stay and studies in Austria is burdensome.

You may contact as anytime for an initial consultation and further assistance with your application and proceedings before the immigration authority (in Vienna: Magistratsabteilung 35). We have years of routine and experience in immigration affairs, including student visas and residence permits for students.

[source image: https://pixabay.com/photos/books-study-literature-learn-stack-2158737/]

Presentation: Commentary on the Austrian Citizenship Act

/in /by

On 10 July 2017, Georg Rihs was invited as co-author to a book presentation of a commentary on the Austrian Citizenship Act. Congratulations to the organizers and editors Helgo Eberwein, Balazs Esztegar und Martin Plunger.

Georg Rihs contributed as co-author to this publication, relying on his year-long practical experience with naturalizatino cases.

RIHS Rechtsanwalt GmbH will gladly advixe and assisst with its expertise in your planned naturalization in Austria!

Patentgesetz

PatG – Commentary to paragraph 30, 31, 32 Austrian Patent Act and paragraph 27 Austrian Act on the Implementation of the European Patent Agreement and the Agreement on the International Cooperation in the field of patents in Stadler/Koller (editors), Austrian Pa-tent Act. Commentary (2019)

/in /by

The contribution to the commentary treats on the specific commercial regulations in the Austrian Patent Act. It comprehensively covers the respective case law and legal literature.

According to these regulations, patent holders enjoy special privileges/exceptions from the regular administrative commercial regulations (“commercial privilege”). They may operate their inventions commercially without a registration with the commercial register. The commented provisions (inter alia) regulate the legal requirements and settings for the compliant operation of this privilege by the patent holder.

In addition, the executive provisions of the Austrian Patent Act are commented on.

RIHS Attorney is proud to recur to their expertise in public commercial law and trade law as well as administrative law for this contribution to a comprehensive commentary on the Austrian Patent Act!

[source image: Linde publishing house]