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 devided 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 servere 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 on 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 Yayment 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]

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)

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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: https://www.lindeverlag.at/onlineprodukt/patg-patentgesetz-3105]

Residence Permit – Student: Application, Evidence, Documents

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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

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On 10 July 2017, Georg Rihs was invited as co-author to a book presentation of a commentary on the Austrian Citizenship Act. heute als Koautor zur Präsentation des soeben im Jan Sramek Verlag erschienenen Kommentars zum Staatsbürgerschaftsgesetz eingeladen.
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!