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, 10.2.2024, 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.

Opening Hours Easter

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Dear clients,

Our office will be closed on 29 March (Good Friday) and 1 April (Easter Monday). From 2 April on, we will be open again at our usual opening hours.

We wish you a happy Easter/an enjoyable Easter weekend.

Your RIHS Attorney Team

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!

Annual Review 2022

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We have taken the turn of the year as an opportunity to review the past year and to recall our team’s successes for our clients.

In order to provide an insight into our wide-ranging and varied activities in the field of public law, we present the most important successes without claiming to be exhaustive.

Tobacco Monopoly Act, Federal Public Procurement Act for Concessions (BVergGKonz 2018).

As a result of our determined intervention for legal certainty and legal protection, the Administrative Court pronounced in 2021 that the Federal Public Procurement Act for Concessions (BVergGKonz) is applicable to the award of tobacco concessions. This landmark decision had (and has) serious consequences for the tobacco monopoly in Austria.

As a result of this decision, we are continuously conducting continued declaratory proceedings under the BVergGKonz 2018 before the Federal Administrative Court and the Constitutional and Administrative Court.

In its ruling of 21 July 2022, Ro 2020/04/0013, the Supreme Administrative Court confirmed our legal position in declaratory proceedings concerning what we consider to be the arbitrary revocation of an invitation to tender and restricted the scope for decision-making by Monopolverwaltung GmbH (MVG) in award procedures, in this case in connection with the revocation of an invitation to tender. In its ruling, the Administrative Court made binding statements on the interpretation of the Tobacco Monopoly Act 1996 (TabMG 1996). We have thus made a further contribution to legal development and certainty, as well as to legal protection in this sensitive area.

In the future, we will continue to vehemently oppose arbitrariness and lack of transparency in the area of the tobacco monopoly!

Civil Service Law

We were able to achieve a very satisfactory result for our client in one, long-standing civil service law case, which had already started in 2017.

With the ruling of 12 July 2022, W246 2210671-1, and W246 2210671-2, the Federal Administrative Court confirmed the application for the correct classification of our client in terms of salary law in the salary scale.

The subject matter of the proceedings was the classification of our client under salary law. Through our representation, we were able to achieve a correct classification for our client by the Federal Administrative Court. The service authority had to pay the difference to make up for the successfully challenged classification. At the same time, we were also able to obtain a statement from the Federal Administrative Court in favor of our client on the preliminary question of permanent service assignment under service law.

Construction Law

In the first quarter we obtained for our client before the Administrative Court the annulment of an order to stop a demolition before the Administrative Court.

The client had started the demolition of a house in Vienna, which had been built before 1 January 1945. With the amendment LGBl 37/2018 to the Building Code for Vienna, the demolition of buildings erected before 1 January 1945 was made subject to a permit requirement. The demolition had been notified as a notifiable measure even before the amendment to the BO f. Vienna came into force. The Viennese building authority (Magistratsabteilung 37) prohibited the demolition by a client after the amendment of the Building Code (BO) for Vienna. The Administrative Court of Vienna confirmed the prohibition notice.

We represented our client up to the Administrative Court. By decision of 15 February 2022, Ra 2020/05/0006, the Administrative Court upheld our appeal and overturned the prohibition notice.

A company had set up quarters for workers on the ground floor of a newly renovated house mainly inhabited by families. The building applicant only reported the structural adaptations in order to circumvent the obligation to obtain a permit and the right of consent of the co-owners.

We successfully represented a number of co-owners and applied for a declaration that the company was obliged to obtain a construction permit and that our clients were parties to the proceedings for the construction permit. In its decision of 23 November 2022, VGW-111/093/7563/2022-22 et al., the Vienna Administrative Court ruled in our favor and stated that the essential construction measures, in particular the change of dedication as a residential quarter, would have been subject to approval.

Settlement law/foreigners’ law/asylum law

In particular, our team successfully assisted numerous clients in the areas of settlement law, residence law, aliens law and citizenship law in its usual experienced manner.

In 2022, we assisted 68 clients in obtaining or extending a residence title in Austria.

In the area of citizenship, we helped 27 clients to enforce a claim for the granting of Austrian citizenship or for the granting of citizenship by notification (Section 58c StbG) for descendants of Nazi persecutees.

We have also not shied away from challenging negative first-instance decisions before the administrative courts and can look back with satisfaction on numerous administrative court decisions in favor of our clients in the past year.

We also have notable successes to our credit before the Supreme Administrative Court in 2022, and in 2022 for example

We consider the lifting of an eight-year entry ban by the Federal Administrative Court shortly before the turn of the year to be a particular success. The complainant, whom we successfully represented, has lived in Austria for decades, is married and has to care for 3 small children. The complainant is currently serving a criminal sentence. Based on our intervention, our position and representation at the hearing, the Federal Administrative Court judged the integration in Austria and the responsibility for the family living in Austria to be more important than the delinquency upon balancing the interests and applying a proportionality test. Deportation of the father and guardian of the family would have had an existential impact on the entire family.

We have also successfully represented clients in numerous administrative criminal proceedings and obtained the termination of the administrative criminal proceedings.

We are happy to share our joy about the successes on our website, so that you can inform yourself about our activities. For eleven years now, we have been working tirelessly and with dedication for our clients.

We would like to thank our clients for their trust and the outstanding commitment of our staff! The picture shows our team, consisting of Dr. Erich Rihs; Michelle Pfeiffer, LL.B. (WU); Erich Rihs, BA; Dr. Georg Rihs; Hannah Scheiring and Sophie Bachner (from left to right).

Please contact us if you have any questions regarding our offers and services. We would be happy to provide you with our expertise and experience to enforce your legal interests.

Public Procurement Law: Technical Contribution on Legal Protection in Continued Proceedings before the Federal Administrative Court (BVwG)

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The legal protection of contractors in award procedures under the Federal Public Procurement Act for Concessions (BVergGKonz 2018) is a recurring topic. Therefore, we have dedicated an article to this current and important topic in the December issue of the Journal for Public Procurement Law and Construction Contract Law (ZVB).

In the article, we summarize our experiences and critical reflections on legal protection under procurement law in fortgese declaratory proceedings before the Federal Administrative Court. It is based on a decision of the Administrative Court (VwGH) in a case conducted by us, which supports the legal position of our client in a procurement procedure concerning a service concession under the Tobacco Monopoly Act (TabMG).

The finding of the VwGH and the lack of legal protection in public procurement law

On a regular basis and for quite some time, we have been conducting proceedings before the highest courts of public law (Administrative Court, Constitutional Court) in a specific area. These proceedings concern the awarding of contracts for tobacconists or the conclusion of order contracts for tobacconists under the Federal Public Procurement Act for Concessions (BVergGKonz) and the Tobacco Monopoly Act (TabMG).

In the process, we have found that the legal protection regime under public procurement law contains numerous pitfalls: Even if we have obtained a ruling supporting our legal position for our clients at the Supreme Court, the proceedings before the Federal Administrative Court are continued on the basis of a motion for continuation. The Federal Administrative Court must make a new decision in which it takes into account the legal opinion of the Supreme Court. In practice, this sometimes happens inadequately.

In this article, we point out the existing deficits in legal protection and present possible solutions for the legislature and administrative practice. Furthermore, we provide considerations on the relevance for the following damages litigation.

Our concern: Your legal protection in public procurement law

Our many years of expertise in public procurement law have led us to dedicate a separate article to the topic of legal protection under the Federal Procurement Act and BVergKonz. We would be pleased to represent you in the field of public procurement law in the best possible and well-founded manner. Through our publication activities, for which we draw from our legal practice, we contribute to the development of the law. This is also to the benefit of our clients.

Please do not hesitate to contact us if you wish to examine the legality of a decision made by a public contracting authority (such as the Monopolverwaltung GmbH in the area of the tobacco monopoly, but also others) and contest it.

Source PDF of the article