COVID19-Measures: Compensation Claims against the Austrian Federal State?

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The administrative COVID19-measures implemented by the Austrian Minister of Health (BGBl II 96/2020) severely affect commercial activities in Austria and may justify compensation claims by enterprises operating in Austria.

Infringement of Constitutional Right of Commercial Freedom by COVID19-measures – Assessment by Austrian Constitutional Court

Trade companies affected by the Directive ref. temporary measures for the prevention of spreading of COVID-19, Federal Gazette II 96/2020, in its consolidated version, e.g. by the shutdown of their shops and sales premises, are immediately afflicted by this directive for the duration of its legal force. The directive infringes on their constitutional right of free commercial activity and equality. As long as this directive is in force, they may challenge the directive at the Austrian Constitutional Court („Verfassungsgerichtshof“, short: „VfGH“) via individual application of annulment. The legal requirements for such an application are the following:

  • the applying company has to proof their immediate concern and affliction,
  • the directive must be legally valid and in force at the time of the Constitutional Court’s hearing of the case following the appeal, and
  • no other legal remedy exists to enforce the legal consequences of the directive.

Especially the second requirement (validity at the time of the decision of the Constitutional Court) is critical. Most likely, the issuing authority of directives on COVID19-measures, i.e. the Minister of Social Affairs, Health Care and Consumer Protection, will suspend the directive as soon as the pressure by the economy has become strong enough.

Proceedings for Annulment of COVID19-Directives before the Austrian Constitutional Court

The Austrian Constitutional Court regularly treats applications for annulment with high priority, hearing cases in one of its next plenary sessions. In this case, this would most likely be in June („summer session“) or September („autumn session“). However, it is unlikely that the Directive ref. temporary measures for the prevention of spreading of COVID19 will still be in force by this time. Only in very exceptional cases the Constitutional Court has ruled on annulment applications and assumed actual and immediate affliction of the applicant restrospectively. The retroactivity would have to be analysed on a case-by-case basis.

Alternatively, an infringement of the constitution by a directive may also be challenged by a civil court on the occasion of a civil court action. The civil court has the competence to adjourn a pending proceeding and request an assessment of an applicable directive by the Austrian Constitutional Court according to Article 89 of the Austrian Constitution („Bundesverfassungsgesetz“, short: „B-VG“). In this instance, the Constitutional Court may also rule on infringements by directives no longer in force. In this specific setting, the Constitution Court assesses directives retroactively for their compliance with the Austrian Constitution.

Civil Court Actions Against the Austrian Federal State for Compensation of Damages due to COVID19-Measures – Concrete Assessment of Applicable Directives

When the constitutional court finds that a directive on COVID19-measures infringed against the Austrian Constitution, a company economically afflicted may file a court action against the Federal State of Austria („Bund“). In a civil court action against the Federal State, the claimant may request the adjournment of the action and assessment by the Constitutional Court according to Art 89 of the Austrian Constitution („B-VG“). In case the court refuses this application, the claimant may enforce the assessment by the Constitutional Court by way of a separate application in appeal proceedings. The claimant has an enforceable right to a legal assessment of the „constitutionality“ of the directive. Once the Constitutional Court rules a directive as unconstitutional, the claimant has to be compensated for the damage.

Recommendation

If your company is afflicted by COVID19-measures and you wish to enforce damage claims against the Austrian Federal State, please contact my office. Our office is regularly involved in cases of administrative economic law, constitutional and commercial law. Further, we also advise and represent in reparation and compensation cases.

We will gladly advise and assist you with the enforcement of your claims as company afflicted by the directive on measures to prevent the spreading of COVID19 by the Austrian Minister of Health!

Please contact us if you wish us to assess the chances of success of a court action!

[Picture: Center for Disease Control and Prevention, public domain]

Austrian citizenship

Facilitations in the award of Austrian citizenship to victims of the Nazi regime and their descendants

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The Austrian Parliament has passed an amendment to the Austrian Citizenship Act („Staatsbürgerschaftsgesetz“, short: „StbG“) with the aim of facilitating the award of the Austrian nationality to victims of the Nazi regime and their descendants (BGBl I 96/2019).

So far, only persons directly afflicted by prosecution were able to claim the award of Austrian citizenship. The amendment to the Austrian Citizenship Act extended the facilitated conditions to all „descendants in direct line“ down to the third generation, including the children, grandchildren and grand-grandchildren of the victims, offering them the faculty to (re)gain the Austrian citizenship by „notification“ of the relevant circumstances.

Besides former Austrian citizens and their descendants, also former citizens of successor states of the Austro-Hungarian Empire and stateless persons residing in Austria until 15 May 1955 and their descendants may apply under these facilitated conditions.

Persons within the scope of the new provisions obtain the Austrian citizenship by notification (and procuring evidence in the relevant circumstances).

Many additional requirements applicable for regular proceedings do not apply, especially regarding German language skills, proof of reliable and regular income for a certain time prior to application, a minimum stay in Austria etc.

The amendment provides for a considerable simplification in the proceedings for the award of the Austrian Citizenship and extends these conditions to the descendants of victims of the Nazi regime in Austria. Former Austrian citizens who were forced to flee Austria due to prosecution by the Nazi regime or officials of the so-called „Third Reich“ and their descendants will be given to submit their notification from 1 September 2020 on. The award may be granted under the considerably facilitated conditions and with reduced fees.

In the proceedings, the applicant will have to prove the circumstances of prosecution and forced emigration.

Our office will gladly assist you with the historical research at Austrian authorities and in the official archive to find evidence on these matters.

We frequently assist with requests on the facilitated proceedings for the award of the Austrian citizenship by notification. We can provide good services in preparation of the requisite documentation and correspondence with the Austrian officials and authorities in the proceedings.

Please do not hesitate to contact us and arrange for a consultation to assess your chances of award of the Austrian citizenship as victim of the Nazi regime or descendant.

[Picture: Goodfon]

Business hours during COVID-19 pendemic

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Our office will be open during the regular business hours over the course of COVID-19 pendemic.

RIHS Rechtsanwalt GmbH will be fully available for you and assist you with the enforcement of your legal interests.
For consultations, we provide our services without limitations, preferrably via telephone of videoconference.
In accordance with the measures by the Austrian Parliament and authorities aiming at the containment of the Corona-pandemy, we will continuously operate for the administration of justice’s and legal certainty’s sake.

Please contact us if you wish additional information, legal advise and representation in any legal aspects!

[Picture: Pixabay]

Prevention of Social Wages Dumping and the Employment of Foreigners in Austria – The ECJ-judgement Maksimovic: freedom of services and Charta of Fundamental Rights against Austrian Administrative Penalties Code

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Prevention of Social Wages Dumping and the Employment of Foreigners in Austria: Rihs, Das EuGH-Urteil Maksimovic. Dienstleistungsfreiheit und GRC vs. VStG, bauauktuell, Verlag Linde, 2020, Heft 1, S. 12 ff i.e. The ECJ-judgement Maksimovic: freedom of services and Charta of Fundamental Rights against Austrian Administrative Penalties Code, Journal Construction Up-To-Date (bauaktuell), published by Linde (Link), 2020, 12

In the last edition of the Austrian legal journal Construction Update („bauaktuell“), published by Linde publishing house, Dr. Georg Rihs analyses the consequences of the ECJ-judgement Maksimovic on the punitive provisions in the Austrian Act on the Prevention of Social- and Wages Dumping („LSD-BG“) and the Foreign Employment Act („AuslBG“) as well as on the general rules on administrative penalty proceedings in Austria according to the Administrative Penalties Code („VStG“), especially the cumulation of penalties.

The Austrian courts are bound to implement the ECJ-ruling and apply the principle of cumulation with consideration to its limits under EU law. See also (Link).

For alleged perpetrators in administrative penalty proceedings based on alleged infringements of the Act on the Prevention of Social- and Wages Dumping („LSD-BG“) and the Foreign Employment Act („AuslBG“), the new case law provides for (further) arguments against (high) penalties.

We will gladly advise and represent you in pending penalty proceedings according to the Act on the Prevention of Social- and Wages Dumping („LSD-BG“) and the Foreign Employment Act („AuslBG“). We may also advise you in preparations for secondments and deployments of workers to Austria in order to prevent penalties.

Please contact us if you wish additional information, legal advise and representation in administrative penalty proceedings in Austria!

[Picture: Pixabay]

Brexit: Consequences of the Withdrawal Agreement

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Brexit: Consequences of the Withdrawal Agreement for the residence permits of UK citizens residing in Austria

Since 31.01.2020 the United Kingdom is no longer a member of the European Union. The United Kingdom and the European Union finally reached a Withdrawal Agreement that was ratified by the competent bodies, the British and the European Parliament (Link).

The „no-deal“ scenario was not realized.

The amendments of the Austrian Residence and Settlement Act („NAG“) that had been passed to provide for a „no-deal BREXIT“ have become obsolete due to this Agreement. The Austrian legislator will have to respond to the new situation and pass another amendment, implementing the relevant provisions of the Withdrawal Agreement (Part I, Art 13 et seq).

With regards to residence of UK citizens in EU member states, the Withdrawal Agreement provides for a transitory period ending on 31 December 2020. UK citizens and their relatives (even from „third countries“) residing in a member state of the European Union before the end of the transitory period may continue to live and work in the respective member state.

For UK citizens and their close relatives (spouses, young children) who do not yet have a formal documentation of their residence status in Austria, it makes sense to obtain such a documentation of the right of residence in Austria under EU law (see Article 19 of the Withdrawal Agreement).

A change to a permanent right of residence is also possible without any problems even after the transitory period has ended (Art 15 of the Withdrawal Agreement).

Once the transitional period ends, citizens of the United Kingdom will be granted a period of six months to apply for a confirmation of their continued right of residence (Art 18 of the Withdrawal Agreement). Such an application will be possible until the end of June 2021. The previous residence authorities will be competent for these applications.

UK citizens and their close relatives with a right of residence or permanent residence are granted access to the member states’ labour markets, meaning that their employment does not require a work permit (Art 22 of the Withdrawal Agreement).

Even after the transitory period, access to the labour market will continue to be open to persons who are already working in Austria under Article 24 of the Withdrawal Agreement. The same logic applies to self-employed persons (Art 25 of the Withdrawal Agreement).

It is therefore advisable for British citizens who wish to continue to live and work in Austria to take advantage of the favourable transitional rules.

We are happy to support you in all necessary steps.

Please do not hesitate to contact our office or make an appointment for a consultation on our website or via the Internet to assess your/your families situation under the Withdrawal Agreement.

[source image: ©Pixabay]

Einreise Brexit

Traveling to Austria and the Schengen area: no-deal Brexit

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Travellers who are citizens of the United Kingdom and wish to travel Austria and the EU have to consider some important points in case of a “no-deal”-Brexit.

The “free movement of persons”, one of the fundamental rights of citizens of EU member states, will no longer apply for British citizen in the likely event of a “no-deal” Brexit.

British citizens will have to meet the following requirements upon entry into the Schengen area (and therefore, upon visiting Austria):

  • procurement of a current and valid passport (the passport must be valid for at least 6 months at the time of entry and must not be older than 10 years),
  • traveller’s health insurance for healthcare.

Upon entering Austria, British citizens will be treated like other “third country nationals”, i.e. citizens from non-EU countries, facing screening at the borders. The border control may require British citizens to show their travel tickets and sufficient funds to finance their stay. Cash exceeding £10,000 and goods must be declared. The EU, EEA and Swiss-lines at airports will no longer be open to British citizens.

 

The United Kingdom/Great Britain will be added to the list of most favoured nations and will still be able to enter without a Schengen visa for a period of 90 days within 180 days. Technically, this privilege will granted by an amendment to Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Link).

However, entry and stay are limited to touristic purposes only. Business-related travels or stays for school or study will require a special visa for the respective purpose.

Please be aware that an overstay without a visa or residence permit may eventually result in administrative penalties, expulsion and a ban to enter the Schengen area. Therefore, British nationals who wish to enter the Schengen area and stay here are well advised to timely care for the requisite visa/residence permit.

 

In any event, we will gladly assist you with questions regarding visa regulations, entry requirements and restrictions as well as residence permits for British citizens after the “no-deal” Brexit has happened. Do not hesitate to contact us for detailed and in-depth information for your stay in Austria.

[source image: ©Pixabay]

Brexit_NoDeal

Austrian Residence for British citizens in the event of a “no-deal” – Brexit

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The deadline for the Brexit (or even in a worst case scenario a “no-deal” – Brexit), January 31, 2020, is approaching unstoppably. After representatives of the EU and the United Kingdom have found an agreement on important points of contention in October, it still cannot be excluded that a so-called “no-deal” – Brexit will occur. In any event, a Brexit will have effects for the residence permits of British citizens residing or intending to move to Austria.

 

British citizens and their (non-EU) families face uncertain times if the UK leaves the European Union without a deal. Previously, they were able to legally stay, work or provide services in Austria because of freedom of movement under European Union Law.

The residence permits were granted according to the Directive 2004/138/EC (Link) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member states.

In Austria, British citizens were granted the residence permit “Anmeldebescheinigung”, their close relatives without British/EC-citizenship “Aufenthaltskarte”.

For the possible event of a “no-deal”-Brexit, Austrian lawmakers have taken precautions. In order to compensate for the loss of the EU residence permit, two special regulations were created.

  • For citizens of the United Kingdom living in Austria for less than 5 years, it is possible to obtain a residence title “Red-White-Red-Card plus” in accordance with the Austrian Residence and Settlement Act (“Niederlassungs- und Aufenthaltsgesetz”, short: “NAG”). This will make it possible to continue their legal stay and work in Austria. If the application is submitted within 6 months after the no-deal Brexit, the applicant is not obliged to proof German language skills. Most other residence titles according to the NAG require a proof of at least basic German language skills.
  • For British citizens who have been legally staying in Austria for longer than 5 years at the time of the no-deal Brexit, there is the possibility to obtain an unlimited residence title “Permanent Residence – EU” (“Daueraufenthalt-EU”), if the general requirements for a residence permit are met by the applicant.

In both cases, applicants who submit their application within 6 months after Brexit do not have to prove specific german language skills. This is an enormous advantage compared to the requirements for a residence permit by (other) third-country nationals.

We recommend British citizens with ties to Autria to seize this opportunity and apply for a residence permit under the preferential requirements foreseen in the Austrian Residence and Settlement Act.

We have been assisting British citizens with questions about their residence permit. Please do not hesitate to contact our office in time to get further information on the consequences of a no-deal Brexit and which steps have to be taken in order to legally stay or remain in Austria.

 

Please contact us if you wish us to advise you on the legal requirements for a residence permit for British citizens in the event of a no-deal Brexit. Contact us for an appointment or specific advice and representation at the Austrian immigration authorities.

 

[source image: ©Pixabay]

LSD-BG

Documentation requirements according to LSD-BG: EuGH Maksimovic and “Implementation” in Austria

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Posting of workers, notificaiton and procurement of documentation for posted workers: European Court of Justice’s judgement 12 September 2019 with severe consequences for companies and their managers -Documentation requirements according to LSD-BG

On occasion of a spectacular case in which managers of a renowned Styrian company were fined millions of Euros for infringements of a sub-contractor against documentary obligations, the European Court of Justice decided on the adequacy of the Austrian obligations to provide documentation in the context of posting of workers (ECJ 12.9.2019, C-64/18, Maksimovic and others, link).

The ECJ ruled that the applicable provisions were inadequately severe in so far as

  • the Anti-Wages and Social Dumping Act (LSD-BG) provides for minimum fines which may not be reduced,
  • the fine increases per every single worker concerned by the infringement to provide documentation on the salary and relevant facts, without any cap,
  • in case of uncollectibility, the fine is automatically converted into imprisonment, and
  • on appeal, an additional 20 % will be added to the imposed fines.

The Austrian Supreme Administrative Court has ruled on the legal consequences of the ECJ-judgement on the applicability of the penal provisions of the Austrian Act for the Prevention of Social and Wages Dumping (short: „LSD-BG“). An important conclusion is that § 7i AVRAG (now: § 28 LSD-BG) from now on has to be interpreted narrowly and a fine may not be imposed cumulatively for every concerned worker, but only once for the complete posting (VwGH 15.10.2019, Ra 2019/11/0033, link).

According to the competent unit in the Austrian Ministry of Social Affairs (www.sozialministerium.at), a new directive/amendment to the „Wages and Social Dumping Guidelines 2015“ will be released soon, giving details on the implementation of the ECJ’s judgement into Austrian law.

For companies receiving formal requests/orders and penalty decisions for offences against the Austrian legislation on the posting of workers and on the prevention of social and wages dumping (LSD-BG), these decisions imply that they may get a considerable reduction of the imposed fines.

We will gladly advise and represent companies ahead of planned postings of workers to Austria, in the aftermath of inspections by the finance police or inspectors from the Construction Workers‘ Holiday and Severance Payment Fund (BUAK), as well as in proceedings with the authorities and administrative courts.

Contact us if you/your company is afflicted by administrative penalty proceedings for failure to comply with obligations to notify/provide documentation on the posting of workers to Austria!

[Picture source: Freepik]
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

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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

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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]