Successful challenge: Federal Administrative Court overturns unlawful exclusion from award procedure!

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Wrongful exclusion from a procurement procedure? The Federal Administrative Court has set aside the decision to exclude our client from the procurement procedure!
Successful challenge of an award decision before the Federal Administrative Court (BVwG).

Have you been wrongly excluded from a public procurement procedure? Do you or your company feel discriminated against in a public procurement procedure because the contracting authority wrongly denies you professional reliability?
If you are looking for a specialized law firm in procurement law that has already successfully taken action against incorrect procurement decisions, you have come to the right place. We regularly advise clients on procurement law and publish in specialist journals. You can find more about our procurement law publications under Publications. We pay particular attention to questions of bidders’ legal protection:
Our law firm recently successfully defended a client against unlawful exclusion – with complete success!
On November 21, 2024, the Federal Administrative Court ruled in favor of our client in case W606 2299837-2.

The case in question – What happened?

Our client had applied for a public contract (framework agreement for the delivery of hardware and software) from a large Austrian sectoral contracting authority. The contracting authority excluded our client’s bid without giving it the opportunity to comment on the reason for the exclusion or to prove “self-cleaning”.
The deadline for submitting requests to participate had not yet expired. Our client addressed questions regarding the tender documents to the contracting authority (sectoral contracting authority), which the contracting authority failed to answer. The contracting authority – in this case a sectoral contracting authority – denied our client access to the procurement platform and thus effectively excluded her from any further communication.

The decision – What did the BVwG decide?

The FAC found that the contracting authority had violated public procurement principles by not giving our client the opportunity to respond to its allegations and thus denying “self-cleaning”.

“Self-cleaning” to restore (allegedly) lacking professional reliability

Public contracts should only be awarded to appropriately qualified, authorized and reliable companies. Professional reliability can be lost, for example, through antitrust violations, violations of the obligation to pay social security contributions, violations of the provisions of the Wage and Social Dumping Prevention Act (LSD-BG) or of the provisions of the Foreign Nationals Employment Act (AuslBG). Austrian public procurement law (BVergG 2018) provides for the possibility of “self-cleaning” in the event of an alleged deficiency (Section 83 BVergG 2018).

“Self-cleaning” in the procurement procedure

A contracting authority is obliged to confront the candidate or tenderer with the alleged reasons for the lack of reliability before exclusion or a decision to eliminate them. The candidate or tenderer must have the opportunity to comment on these allegations and to provide evidence of self-cleaning measures.
If a candidate/tenderer can prove that they have taken specific technical, organizational, personnel-related or other measures to avoid future violations, they can provide the contracting authority with corresponding evidence in response to the allegations. The contracting authority must review these.
In this case, the contracting authority did not give our client the opportunity to comment on the assumption of a lack of professional reliability and to provide evidence of self-cleaning measures. This led to the annulment of the exclusion decision.

The outcome – What are the legal consequences of the BVwG’s decision?

Our client was able to participate in the further procurement procedure. The contracting authority had to set a new deadline for the submission of requests to participate and grant our client access to its procurement platform.
This means that candidates have the right to correct defects accepted by the contracting authority before exclusion or to provide clarifications to prove their professional reliability!
Have you also been wrongly excluded from a procurement procedure?

The relevance of the decision for you and your company

An erroneous exclusion has serious consequences for the competition that public procurement law is supposed to promote. Not every contracting authority acts in accordance with the law – a challenge can be worthwhile!
Our law firm specializes in public procurement law and has already successfully conducted numerous review proceedings against erroneous procurement decisions.

Make an appointment now for an initial consultation.

Legal opinion “WGG: Auditing Association and Change of Association” Publication as an expert article in the professional journal “wohnrechtliche blätter:wobl”

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The challenge: founding a new auditing association

Non-profit developers are required to belong to an auditing association (mandatory association) and to undergo audits by this auditing association (audit requirement). Until now, there was only one auditing association. The founding of a new auditing association for non-profit developers for the first time raised complex issues under association and civil law.
Our client was interested in an expert clarification of these questions and the legal consequences of a change of the auditing association in order to be able to make and enforce its entrepreneurial decisions with legal certainty.

From legal problem (change of auditing association) to legal opinion

Terminating membership of the previously existing auditing association and establishing membership of the newly founded auditing association also has an impact on (ongoing) audits.
Dr. Georg Rihs prepared a comprehensive and fundamental legal opinion in which he clearly answered the relevant questions under association and civil law and presented independent solutions, which were subsequently adopted.
Due to the novelty and complexity of the subject, it was necessary to examine the interaction of several areas of law (law of associations, general civil law, civil procedure law, law of cooperatives and commercial register law) and to develop independent conclusions. A thorough research in the legal literature was followed by the preparation of a legal opinion in which Dr. Georg Rihs examined the legal situation, the case law and the legal literature and provided a structured answer to the – new – legal questions.
The legal opinion led to clear and favorable results for the client.

Publication of the legal opinion on the new framework conditions for the revision in a legal journal

The legal opinion provided by Dr. Georg Rihs attracted attention and interest among experts. An adapted version of the legal opinion was published in the legal journal “wohnrechtliche blätter: wobl” under the title “WGG: Revisionsverband und Verbandswechsel” and is available there to interested experts.
The publication is also of interest to the client because the solid and well-founded conclusions have thus found their way into legal literature. Other market participants, supervisory authorities and courts can refer to these conclusions and discuss them.

This case study shows how our legal opinions can help to ensure legal certainty and clarity for our clients, thereby achieving practical results.

If you have any questions about this topic or any other aspects of public and administrative law, please do not hesitate to contact our law firm. We can provide you with customized legal opinions that will help you and your company make informed decisions and minimize legal risks.

Contact us today! Book an appointment online or call us directly on 01 532 11 38. Let us work together to clarify your legal questions and support you in meeting your challenges.

Assistance for a successful market entry in Austria

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We successfully assisted a German company in entering the Austrian market. With our support, the company is now fully compliant with Austrian regulations, operating through a branch office registered in the commercial register, and holding the necessary business license. As a result, the company meets all legal requirements to offer its services and participate in public procurement procedures.

Challenges and Solutions

Particular attention was given to the trade law requirements for entering the Austrian market. In principle, foreign companies must meet the same requirements for conducting business in Austria as domestic companies.

European Union law aims to harmonize the internal market and reduce bureaucratic hurdles for cross-border services. Accordingly, the following apply to foreign companies:

Despite these simplifications and the information available on the Business Service Portal (USP), practical challenges still arise in the recognition of professional qualifications. We were able to resolve these issues quickly and successfully for our clients.

Our Support

The following information is essential for ensuring efficient and successful compliance with trade law procedures in Austria:

  • Existing business licenses in the country of domicile,
  • Professional experience and duration of business activities,
  • A detailed description of the business and planned operations in Austria,
  • Curriculum vitae, training, qualifications, and experience of the managing directors or responsible individuals.

With this information, we can determine the applicable requirements under the Austrian Trade Regulation Act (GewO) and its implementing regulations.

Our legal expertise allowed us to provide our client with comprehensive support, from the initial consultation to the establishment of the branch office and the necessary trade law procedures in Austria, all the way through to participation in public procurement processes. This enabled us to successfully position our client in the Austrian market.

This case highlights how we assist companies in navigating complex legal situations, facilitating their successful entry into the Austrian market while overcoming regulatory challenges. We leveraged our extensive experience in commercial law to manage the required procedures efficiently and with legal certainty.

Contact Us

Do you need assistance with trade law, public procurement law, or have general questions regarding your company’s market entry in Austria? We are here to support you with our expertise.

For more information about our services, click here.

Schedule an appointment today and get your business successfully started in the Austrian market!

Lawyers’ Ball 2024 – We were there

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As every year, Dr. Georg Rihs hosted a small get-together at the law firm’s premises before the Lawyers’ Ball on Carnival Saturday, 10 February 2024, and met colleagues and friends. We then attended the Lawyers’ Ball at the Hofburg Palace in Vienna, which was, as always, a prominent and well-attended event.

The Lawyers’ Ball was an excellent opportunity to meet colleagues and friends away from everyday professional life in a festive and relaxed atmosphere. We are already looking forward to the Juristenball 2025!

Congratulations on the graduation of our long-time employee Ms. Michelle Pfeiffer, LL.M. (WU)!

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In November 2023, the graduation ceremony of our long-time employee, Ms. Michelle Pfeiffer, LL.M. (WU), took place at the Vienna University of Economics and Business. We are very pleased that Ms. Pfeiffer invited us to the graduation and that we were able to congratulate her personally on this success.

Ms. Pfeiffer, LL.M. (WU), has supported our law firm for many years as an extremely eager, precise and legally interested student. She is currently completing her judicial year. We hope that she will continue to support our team as a trainee lawyer after completing her court year!

Opioid Maintenance Treatment: Success before the Constitutional Court

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Constitutional Court Annuls Removal of a Doctor from the List of Doctors Authorized to Provide Opioid Maintenance Treatment Due to Violation of the Prohibition of Arbitrariness

The constitutional problem: regulation of opioid maintenance treatment, strict (and unclear) documentation requirements for doctors

The new calendar year 2024 begins for the law firm with a successful and delightful decision by the Constitutional Court: a doctor who was authorized to provide opioid maintenance treatment and registered on the list of doctors authorized to do so was removed from the list of doctors authorized to provide opioid maintenance treatment by the responsible health authority (Municipal Department 40). The health authority had concerns about the documentation and administration practice. As this is a sensitive and, in the public interest, highly regulated area, doctors who are authorized to carry out opioid maintenance treatment are subject to comprehensive documentation obligations, which, however, are not conclusively and precisely regulated in the applicable laws (Narcotic Substances Law, Narcotic Drugs Ordinance, etc.). In several places, only “comprehensible documentation” is mentioned. The law (Narcotic Substances Law) and the Narcotic Drugs Ordinance alone do not clearly state when documentation is sufficiently comprehensible.

The constitutional solution: comprehensive duty of investigation and justification on the part of the health authority, consideration of the circumstances of the individual case

In the present case, the Constitutional Court took up our argument in particular that measures were taken in connection with the COVID-19 pandemic to provide sufficient treatment and opioid maintenance treatment for people requiring treatment. The Constitutional Court agreed with this argument and came to the conclusion that the health authority (Municipal Department 40) and the Administrative Court had not sufficiently taken this aspect into account in their decision. The decision of the Administrative Court therefore violated the prohibition of arbitrariness derived from the principle of equality. The decision dated 30 November 2023, E 1435/2023-17, was delivered to us in the middle of last week.

Our expertise in constitutional law for you

With this decision, our law firm is sharpening its profile in the area of public law. The applicable provisions in the Narcotic Substances Law and in the Narcotics Ordinance are regulations governing the exercise of gainful employment for the treating physicians. We thus remain true to our principle of successfully handling special administrative law cases in peripheral areas of public law with the utmost care and diligence. We are happy to familiarize ourselves with special matters (such as here: Narcotic Substances Law and Narcotics Ordinance) in order to achieve economically valuable and also constitutionally important victories for our clients!

With this in mind, we wish you a happy and successful new year 2024!

Please contact us at any time if you would like to have public law issues clarified before administrative authorities, administrative courts and ultimately the Administrative and/or Constitutional Court!

New edition of the commentary on the Austrian Citizenship Act: Co-author Dr. Georg Rihs comments on two paragraphs (§ 13 and § 14 StbG)

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New publication of current commentary on the Austrian Citizenship Act

We recently received the new edition of the commentary on Austrian citizenship law Plunger/Esztegar/Eberwein, StbG2 (2023), hot off the press. This is now also available in well-stocked specialist bookshops (link to the publisher’s webshop).

On 1102 pages, the authors deal with all applicable provisions of the current citizenship law. Numerous references to the case law of the Administrative and Constitutional Court offer profound insights into this central and important legal matter. The authors comprehensively discuss the practice of the citizenship authorities and subject it to a jurisprudentially sound critique.

Dr. Rihs has co-authored a commentary on the provisions of § 13 and § 14 of the Austrian Citizenship Act. These two provisions allow persons who have lost their Austrian citizenship for certain reasons and stateless persons to (re)acquire Austrian citizenship.

The path to Austrian citizenship

According to the case law of the Administrative Court, the granting of Austrian citizenship should represent the conclusion and culmination of successful integration in Austria.

Applicants must apply to the competent citizenship authority for the granting of Austrian citizenship. The citizenship authorities only grant citizenship if an applicant fulfills all the requirements of the Austrian Citizenship Act (StbG). The administrative procedure that precedes the granting of Austrian citizenship is complicated and lengthy. An applicant for citizenship can help to shorten the duration of the procedure through good preparation and efficient representation.

Citizenship law is the subject of legal policy discussions. The legislator, the administrative courts and the authorities contribute to the constant further development of citizenship law.

We constantly represent clients before citizenship authorities, administrative courts and the Constitutional Court as well as the Administrative Court in citizenship proceedings.

Our profile in the area of citizenship law

We are constantly dealing with current topics in the legal areas of our specialization – including citizenship law. If time permits, we publish in these areas of law. Our articles in specialist journals and commentaries complement our practical work and help us to penetrate the legal matter to the benefit of our clients.

We are happy to use the knowledge and experience we have acquired for our clients and thus achieve ongoing success before authorities and courts.

Contact us for further information or an initial consultation. You can conveniently book an appointment via our homepage.

 

Red-White-Red Card, Access to the Austrian Labor Market for Third-Country Nationals: Recent Amendments facilitate the award procedure for Employees and Employers

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The Red-White-Red Card: residence title and employment permit

The Red-White-Red Card is an attractive residence title for qualified workers who can present a binding job offer from an Austrian company. The settlement authority and the labor market service check the qualifications on the basis of a catalog of criteria. For example, an applicant receives points for completed vocational training, a university degree, relevant work experience, and knowledge of German and English. The job offer and the future employer must also meet certain criteria (minimum salary, qualified and training-adequate position in the company, etc.).

Requirement: professional qualifications of the employee

The qualifications of the employee are evaluated according to a point scheme. If a worker achieves a sufficient number of points according to this points scheme, he or she can obtain a red-white card (residence title and employment permit). The prerequisite is a corresponding job offer from an Austrian employer.

The applicable points scheme for the award of a Red-White-Red Card is explained in detail at www.migration.gv.at. Although the criteria for the award of points are clearly and comprehensively regulated in the Foreign Employment Act (AuslBG), questions of interpretation repeatedly arise in administrative practice. For example, it is not always clear which professional education or training is qualified as “relevant to the field of employment” by the Austrian Labour Market Service (AMS). Good preparation makes it easier for the immigration offices and the Austrian Labour Market Service (AMS) to reach a decision quickly in favor of the applicant (skilled worker or company/future employer).

In the recent past, the Austrian legislator has repeatedly made adjustments to make the Red-White-Red Card more attractive for both employees and employers. For example, with the amendment to the Austrian Foreign Employment Act, Federal Gazette I 106/2022, the Austrian legislator created new, simplified framework conditions for the Red-White-Red Card, in particular a more favorable points system for skilled workers in shortage occupations.

Already two amendments of the rules concerning the Red-White-Red Card in 2023

 The amendment to the Austrian Foreign Labour Act (AuslBG), Federal Law Gazette I 43/2022, which has been in force since 21 April 2023, regulates access to the labor market for Ukrainian refugees who have a temporary right of residence in Austria on the basis of the Decree on displaced persons (Federal Law Gazette II 92/2022). It also provides for easier access to the Red-White-Red Card. Above all, more points are awarded in individual selection criteria (e.g. language, professional experience) than before. With the amendment, the legislator wants to counteract the shortage of skilled workers. The legislator has relaxed the criteria for issuing the Red-White-Red Card in order to facilitate access to the Austrian labor market for skilled workers from abroad. The parliamentary materials provide information on the legislator’s objectives and motives. The motive report is available online on the website of the Austrian Parliament (Link) and can be used as an argumentation aid, for example, in questions of interpretation.

Easier requirements since April 2023: new points scheme, consideration of English, French, Spanish, Bosnian/Croatian/Serbian skills

Since the last amendment, points are awarded not only for German and English language skills, but also for language skills in the French, Spanish and Bosnian/Croatian/Serbian languages. This facilitates labor market access for persons who have acquired language certificates or completed training in these languages.

Procedural simplifications since July 2023

Until the last amendment to the Act on the Employment of Foreign Nationals (AuslBG), BGBl I 84/2023, a positive decision by the Regional Office of the Foreign Labour Market Service (AMS) was required for admission as a key worker and thus posed a procedural prerequisite for the “Red-White-Red Card”.

The Constitutional Court overturned this regulation as questionable under the rule of law (VfGH 14.12.2021, G 232/2021-14). The legislator therefore had to amend the regulation within the period granted by the Constitutional Court.

Since this amendment, which entered into force on July 20, 2023, a key worker permit can also be issued if

  • the employment of the foreigner is necessary for particularly important reasons, in particular to preserve jobs of domestic employees or as a demonstrably qualified worker in a shortage occupation, or
  • public or supra-company macroeconomic interests require the employment of the foreigner.

This gives both the immigration offices and the administrative courts the option of admitting an employee as a key worker in the event of a negative decision by the Regional Office of the Austrian Labour Market Service.

The aim of these measures is to make it easier for qualified applicants to achieve the required points and to comply with procedural law, thus facilitating access to the Austrian labor market.

The changes are welcome for qualified professionals wishing to settle in Austria, for third-country nationals wishing to work in Austria and for Austrian companies.

We have already successfully assisted numerous clients in obtaining a Red-White-Red Card under the new legal situation.

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

“Die Presse”, legal supplement of April 3, 2023: Coverage of two cases of our law firm

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We are pleased that the Austrian newspaper “Die Presse” covered in the last edition of its legal supplement “Rechtspanorama” (April 3, 2023) two challenging and interesting cases from our law firm, moreover on the same page.

“Cosmetic surgery beats fate” – Supreme Court decision on insurance law after cosmetic surgery

Under the headline “Cosmetic surgery beats fate”, “Die Presse” reports on an interesting insurance law case that our law firm represented through the instances.

The Supreme Court decided on January 25, 2023, 7 Ob 202/22i, on claims of our client for reimbursement of surgical costs for a cosmetic operation by the health insurance. The surgery was necessary as a result of a cancer disease and treatment, but according to the expert had its cause in a previous cosmetic surgery. The case is also interesting in that the client had acuqired a “health insurance policy covering all risks” as defined in Section 11(2)(4) NAG. Based on the interpretation of a liability exclusion, the insurance company refused to cover the surgery costs as consequences of a cosmetic surgery or treatment. The Supreme Court confirmed the legal position of the insurance company in this case. The case provides clarity in the interpretation of the exclusion of liability for “cosmetic surgery and its consequences.”

“Between ‘Tomahawk’ and ‘Zebra'” – Constitutional Court confirms our legal position in name law

On the same page, Mag. Kommenda reports on a success of our law firm before the Constitutional Court, title “Between ‘Tomahawk’ and ‘Zebra’: right to change name strengthened“.

The Constitutional Court ruled on this case in the last session (Constitutional Court, March 14, 2023, E 2363/2023).

In this case we successfully represented a client who wanted to adopt a name he had been using for a long time as his legal name. This case was contested before all instances. The Administrative Court rejected the change of name. Before the Constitutional Court we successfully enforced our client’s wish to change his name. The Constitutional Court qualified the decisions of the lower instances as an interference with the right to private life (Art 8 ECHR).

We enjoy dealing with complex legal problems, preferably related to public law, constitutional law and human rights. Our success before the Constitutional Court in the area of name law has once again confirmed our profile in the context of representation in public law cases.

We look forward to hearing from you if you are confronted with a complex and special legal problem, possibly also in an “unusual” legal matter such as the law of names.

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

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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!