New Publication on the Subject of Energy Law Grid Operators’ Line Rights

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We are pleased to announce that Dr. Georg Rihs has published an article in the professional journal Recht der Umwelt (RdU) on the subject of pipeline rights and easements of (electricity) network operators (link).

The article deals with the legal basis for the use of third-party land by electricity grid operators. In the past, network operators have often based their claims on the fact that they are “obvious easements” (lines, pylons) on the land of others. However, such easements are only granted to a specific person who exercises them. A legal succession or a change on the part of the electricity grid operator may lead to the expiry of this easement.

Case law also supports the assumption that private-law line rights/obligations do not automatically pass to a legal successor.

Landowners whose land is encumbered by lines can question the legality of the network operators’ line rights on their land.

Please feel free to contact us if you have any questions about third-party pipeline rights on your land!

Tobacco Monopoly: Federal Procurement Law Applicable!

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Our law firm has achieved another landmark victory for the rule of law: In its decision of 20 July 2021, Ra 2019/04/0231, the Administrative Court pronounced in a strengthened senate that the Federal Procurement Act for Concessions must be applied to the award of tobacconists or appointment of tobacconists within the framework of the tobacco monopoly.

In Austria, the award of tobacconists’ licenses was decided by the Monopolverwaltung GmbH (MVG GmbH). The difficult-to-comprehend and non-transparent awarding practice has recently also been questioned in media reports.
High-turnover tobacconists generate seven-figure revenues from the sale of tobacco products alone. In addition, the operation of a tobacconist’s shop enables lucrative sideline business such as the sale of lottery tickets etc. Currently, tobacconists are appointed practically for life.
Accordingly, traceability and transparency are important in the awarding of tobacconists’ contracts.

Tobacco monopoly: Court of Audit criticized awarding of tobacconists’ contracts

In the past, the Court of Audit has strongly criticized the awarding practice. Neither the legislature nor the administration has responded to this criticism. As in the past, the monopoly administration alone has been responsible for awarding contracts within the framework of the tobacco monopoly (based on the Tobacco Monopoly Act, or TabMG for short), which dates back to the post-war period. The special rights originally granted as a supply for war-disabled persons increasingly receded into the background in the allocation processes. The legislator did not react to the changed market conditions.

On the occasion of gross abuses in the award of some tobacconists’ contracts, our law firm initiated the first ever review proceedings under the BVergGKonz 2018 and demanded the application of the award regime for concessions based on Directive 2014/23/EU on the award of concessions or the Federal Act on the Award of Concessions (BVergGKonz 2018) adopted in implementation of this Directive.
The Federal Administrative Court rejected several of these requests for review on the grounds that the concessions were not service concessions, but a legal institution of a separate kind that does not impose any public interest obligations on tobacconists.

Administrative Court: BVergGKonz 2018 to be applied.

The Administrative Court has now corrected this ruling practice: In fact, numerous obligations in the public interest are imposed on tobacconists, in particular in the sense of supplying the population with tobacco products within the framework of the tobacco monopoly. For this reason, the monopoly administration GmbH must comply with the Federal Public Procurement Act for Concessions (BVergGKonz 2018). The legal protection instruments of the BVergGKonz 2018 also apply without restriction to the award of tobacco concessions.

We are pleased to have achieved this groundbreaking success in the field of public procurement law or public procurement law for concessions for our client.
Should you apply for a public concession, we will be happy to advise you and are also at your disposal in review proceedings!

Our success was reported by “Die Presse”, ORF, “Der Standard” and others.

 

 

Supreme Court for Civil Matters: Discrimination against graduates of cross-border cooperation studies unlawful!

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We are pleased to announce a positive decision in a lengthy civil case which we were able to obtain for our client, an employee of the Austrian National Bank (Oesterreichische Nationalbank, short: OeNB). We successfully enforced that the completion of an university degree abroad (in this case: cross-border cooperation course at the Mittweida University of Applied Sciences in Germany) must be fully taken into account when classifying the employee in the internal salary scheme of the OeNB. The employer was obliged to pay the difference in salary for the last three years in arrears. The Supreme Court followed our reasoning. It thus strengthens the Bologna system and enables the crediting of degrees acquired by employees in the context of cross-border cooperation courses of European universities outside Austria.

In its decision of 25 November 2020, 9 ObA 58/20z, the Supreme Court clarified that a graduate of a cross-border cooperation course is not permitted to be treated less favourably in terms of internal salary classification than a graduate of a domestic university.

The decisive factor for this decision was the incorrect classification of an employee of the Austrian National Bank in the internal salary scheme. The employee had studied at a German university and obtained the title of Master of Science (MSc) there. However, as this was not a degree from a domestic college or university, the employer did not recognise his education as a fully-fledged course of study. The employer only classified him in his salary scheme as a high-school graduate (in Austrian German: Maturant) and not as a university graduate. This resulted in a large difference in salary over the years.

The Supreme Court considered this disadvantageous position as discrimination against graduates of studies within the framework of cross-border inter-European cooperation studies, which is why a reclassification of the employee was necessary and the salary difference had to be paid to him by the Austrian National Bank.

Arabische Kultusgemeinde Österreich (AKÖ) – unlawful decision of the (governmental) department for religious affairs (Kultusamt) overturned by the Administrative Court Vienna

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We have a great success to report in a legally demanding case of constitutional law, which is also explosive in the media:

In a decision of 21 April 2021, the Administrative Court Vienna overturned the decision of the (governmental) department for religious affairs (Kultusamt) of 7 June 2018, with which it had withdrawn the legal personality of the Arabic Religious Community Austria (Arabische Kultusgemeinde Österreich, short AKÖ).
The Administrative Court stated that all formal requirements (number of mosque facilities, worshippers) were fulfilled by the AKÖ.
The Administrative Court based its findings on the confirmation of the Islamic Religious Community Austria (Islamische Glaubensgemeinschaft in Österreich, short IGGÖ), which examined and confirmed the formal requirements according to intra-religious community law.

The decision of the Administrative Court marks the end of a lengthy procedure.

In a press conference on 8 June 2018, the then Minister of the Interior (Kickl), the Federal Chancellor (Kurz) and the State Secretary for Cultural Affairs (Blümel) had announced the “closure” of 7 mosques of the Arabic Religious Community Austria (AKÖ) as a blow against political Islam (link).

On the same day, the Kultusamt issued a decision to cancel the legal personality of the AKÖ. The Kultusamt justified this with

  • allegedly questionable sermons in a mosque of the Arabic Religious Community Austria (AKÖ) and
  • an allegedly insufficient number of members and mosque facilities, whereby the AKÖ violated the constitution of the IGGÖ.

In a manner questionable under the rule of law, the Kultusamt excluded the suspensive effect of legal remedies in order to give immediate effect to its decision.

Due to our successful appeals against the decision, the Vienna Administrative Court made two decisions:

The Kultusamt appealed against the substantive decision of the Vienna Administrative Court with an extraordinary appeal to the Administrative Court (“Amtsrevision”).
The Administrative Court referred the matter back to the Administrative Court. The latter was to examine whether the formal requirements for the existence of the religious community (number of members and mosque facilities) were met (Supreme Administrative Court, 30 January 2020, Ro 2019/10/0026-5).

On 21 April 2021, the Vienna Administrative Court held an oral hearing. At the hearing, the IGGÖ confirmed that, after a new examination, the AKÖ fulfils all formal requirements for legal personality according to the Islam Act 2015.
In the hearing of 21 April 2021, the Administrative Court annulled the original decision of the Kultusamt, which now had to be decided again, as unlawful.

The decision is a great success for our law firm:

  • The Administrative Court confirmed the rights within the framework of the autonomy and self-administration of the IGGÖ as an Islamic religious society. The Administrative Court examined the formal prerequisites for the legal personality of the religious community solely on the basis of the IGGÖ’s information about the ability to self-preserve and the existence of the religious community. A more detailed examination by the Administrative Court or the Kultusamt was not carried out.
  • The status of the religious communities as parties in proceedings concerning them was confirmed by the Federal Administrative Court and the Administrative Court Vienna.

We are happy to advise on legally demanding and complex matters such as association and religious law!

 

Dissolution of an Islamic Association as a Result of the Terrorist Attack of 2 November 2020 Suspended

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Dr. Georg Rihs is pleased about another successful intervention in a current religious law case: due to the representation in the appeal proceedings, the Vienna Provincial Police Directorate as association authority revised the dissolution of the Islamic “Association for the Promotion of Islamic Culture”.
The success solidifies the firm’s reputation in complex administrative and religious law proceedings and in connection with proceedings under the Islam Act 2015.

As a result of the terrorist attack on 2.11.2021, the Vienna Police Directorate, as the association authority, dissolved two Islamic associations with immediate effect by means of a mandate notice without any preceding investigative proceedings.
The association “Verein zur Förderung der islamischen Kultur” (Association for the Promotion of Islamic Culture), which operates the Tewhid Mosque in 1120 Vienna, Murlingengasse 61, was one of these two associations. The Vienna Regional Police Directorate justified the immediate dissolution under the Associations Act by stating that the assassin had visited the mosque in 1120 Vienna before the attack.

The dissolution of the association also meant that the Islamic Religious Community of Austria (IGGÖ) withdrew the mosque’s legal status as a “mosque community” under intra-religious law.
The association’s officials filed a timely appeal against the decision to dissolve the association. This appeal did not have a suspensive effect. This means that the association was deprived of its legal personality for the duration of the proceedings.

The Vienna Provincial Police Directorate now had to revoke the mandate notice after a thorough examination of the facts. It determined that no persons with Islamist extremist ideology held functions in the association or were active in a supportive capacity for the mosque. At no time did the association actively call on individuals to participate in armed jihad in crisis areas or encourage them to do so. According to the findings of the association’s authorities, the sermons delivered at the mosque’s Friday services did not glorify jihad.

During the proceedings, it emerged that neither the BVT nor the LVT Vienna had any reliable evidence or reports that would have justified the measure of dissolving the association. Although the Vienna Regional Police Directorate, as the authority responsible for the association, invited the BVT and the LVT Vienna to submit evidence later in the proceedings – this evidence should have been available at the time of the dissolution of the legal entity – neither institution was able to provide any comprehensible justification for the dissolution. The Regional Police Directorate also critically noted that the BVT and the LVT Vienna – despite repeated requests – were unable to provide any information on alleged violations of criminal law by association bodies.

The association actively cooperated in this investigation and submitted all sermons held at church services in 2013 and 2020 in German translation.
The withdrawal of the dissolution of the association was the necessary consequence of the investigative proceedings of the association authority.

The association has thus been rehabilitated. It now again enjoys full legal personality under the Law on Associations.
After a relatively long procedure, the association has thus been restored to its legal status. It remains questionable and problematic that the proceedings took more than four months, although from the beginning there were no facts that would have justified dissolution. The association has suffered financial damage as a result of the (now proven) illegal dissolution with immediate effect.

It remains to be seen whether the mosque will be reinstated as a mosque community by the Islamic Religious Community.

Also Austrian press (daily newspaper Der Standard) has covered the subject-matter (Link).

Residence Permit „Art 50 EUV“

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The United Kingdom’s withdrawal from the European Union (known as “BREXIT”) and thus also from the EU’s internal market and customs union brings with it numerous innovations. As a result, the right of residence for British nationals and their family members has been largely changed. As of 1st January 2021, the United Kingdom is considered a third country from the perspective of the EU. The Austrian legislator has therefore created a separate residence permit (“Residence Permit Art 50 TEU”) for British citizens and their family members residing in Austria (see amendment to the Austrian Residence and Settlement Act, Federal Gazette I 56/2018.

The status of British citizens and their (close) family members is ruled by the so called „Brexit-Implementation-Regulation“ published by the Austrian Minister of Interior, Federal Gazette II 604/2020.

British citizens and their (close) family members from third countries may now apply for a „residence permit according to Art 50 Treaty of the European Union“.

This residence permit is intended to ensure that British citizens and their close relatives have the opportunity to live, work and study in Austria.

The requirements for obtaining this residence permit – as has already been the case for EU citizens – are the following:

  • gainful employment or sufficient financial means to finance a stay in Austria for oneself and one’s family members without depending on social welfare benefits or public allowances, as well as
  • comprehensive health insurance covering all possible risks in Austria.

German language skills are not a required for the application for the residence title “Article 50 EUV”.

Since January 2021, the application is possible until the end of December 2021. Thus, there is a sufficient time window for the application. The residence permit “Article 50 EUV” is issued in credit card format and is generally valid for 5 years. Of course, the acquisition of a permanent right of residence is still possible. Persons who have already acquired a permanent right of residence in Austria are granted the residence title “Article 50 EUV” for 10 years.

An initial application has to be made in person at the competent authority. An application with a valid residence permit in Austria presently (due to COVID19) has to be submitted via mail. In Vienna, the application has to be submitted to the Municipal Department 35 (MA35). The personal application is to ensure that the identity of the respective person is guaranteed.

Due to the current COVID19 restrictions, appointments with the immigration office must be reserved online.

As experts in immigration law, we have assisted many clients in obtaining residence permits according to Art 50 TEU.
Feel free to contact us if you would like us to assist you with your “Article 50” residence permit application.

Suspension of ban of Islamic headscarf by the Austrian Constitutional Court (§ 43a Austrian School Education Act)

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With gread joy we announce that we successfully represented three afflicted girls and their parents in proceedings to suspend an unconstitutional legistlative act before the Austrian Constitutional Court.
The Constitutional Court has taken its decision and formally announced the conclusions today, November 11, 2020. The decision suspends the ban of the Islamic headscarf for girls aged 6 to 10 years of age. The announcement was broadcast life on the website of the constitutional court, www.vfgh.at.

The ban explicitly aimed at Muslim girls. In the parliamentary reports, the legislator explained that the ban should not be applicable for dresscodes of other religions (like Jews, Sikhs).

The Austrian Constitutional Court has stopped a grave infringement on the freedom of religion and expression. It ruled that the girls’ and parent’s religious freedom were disrespected by this legislative act.

The Constitutional Court suspended the unconstitutional act immediately, i.e. without granting the legislator a period for “reparation”.

We celebrate this victory of human rights and liberal democracy together with our clients!

Interview with Journalist and Author Kemal Rijken about the Austrian Islam Act 2015 (Islamgesetz 2015)

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Last week we had the opportunity to share our expertise in religious law: The journalist and author Kemal Rijken (www.kemalrijken.nl) from the Netherlands visited us at our office to talk with us about the Austrian Islam Act 2015, the current legal situation and current legal policy problems. He is working on a comprehensive article for the Dutch weekly magazine “De Groene Amsterdammer” (www.groene.nl).We are already looking forward to the article!

Long Duration of Proceedings in NAG Proceedings: Effective Protection?

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Rihs: Effective Protection Against Undue Protraction of Proceedings [by Authorities and Administrative Courts] under the Settlement and Residence Act (NAG)? migraLex 2020, 42. (PDF-Version)

Time is money: Unfortunately, unpleasant delays occur every now and then, particularly in proceedings for residence permits under the Settlement and Residence Act (NAG). Although the general statutory decision period of 6 months and – in cases like student visas or red-white-red cards – even shorter decision periods apply to individual residence titles, procedures for grant of a residence title often take longer than the statutory period.

In a scholarly article written for the legal journal migraLex, Dr. Georg Rihs examines the question of the extent to which the protection against undue protraction of proceedings in Austrian General Administrative Procedure Law meets the requirements for procedures under the Settlement and Residence Act. Especially with regard to the requirements of the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFR), the legal design of the protection against protractions and delays caused by an authority’s or court’s inaction is problematic in Austria. The legal remedies provided by the Austrian General Administrative Procedure Law to the administrative courts and requests for the setting of deadlines to the Administrative Court often – even conceptually – do not lead to the desired acceleration of proceedings.

The thorough examination of legal remedies for the enforcement of expeditious proceedings is important for our practical work as lawyers, because legal remedies for protection against undue delays must be used again and again in order to achieve and enforce the objectives of our clients quickly and within the required time.

The article also contains suggestions to the Austrian legislator to remedy defeciencies in the rule of law for the future and avoid practical problems in the enforcement of the law.

[Foto: needpix.com]

Warranty Condominium Ownership

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Decision by Vienna District Court for Commercial Matters 26 June 2020, 19 C 123/19 f

Warranty claims successfully enforced for condominium owners’ association against well-known property developers.

After completion of a new building project in 2016, various defects in public parts of the apartment building (damage to the stone floors on the doorways and in the central staircase, expanse approx. 500 m2) were already identified in the takeover protocol. The developer denied any responsibility and argued that the cleaning company contracted by the property management company for the ongoing cleaning of the aisles had caused the damage.

We filed the warranty claim in good time before the warranty period expired. With the ruling of the Vienna District Court for Commercial Matters of 26.06.2020, 19 C 123/19f, the Court granted our action as admissible and well-founded. The property developer was ordered to carry out a complete and comprehensive correction of the defects according to clear specifications at its own expense and to reimburse the costs of the proceedings.

The property developer has waived its right to appeal.

The judgment of the Vienna District Court for Commercial Matters is final and enforceable.

The court considered a majority resolution of the condominium association to be a condition for admissibility of the action. It was necessary to comply with the respective requirements of the Austrian Condominium Act (Wohnungseigentumsgesetz, WEG) for the decision-making process of the condominium owners’ association in the context of the civil proceedings. Thanks to our timely and conscientious intervention, we succeeded in safeguarding the condominium owners’ association’s warranty claims.

It is advisable to consult a lawyer in this matter as well and take the necessary steps well before time-bar of the warranty claims.

It was decisive for the success of the proceedings that we

  • took legal action in good time before the expiry of the warranty period,
  • were able to provide good evidence of the defects that immediately after the hand-over of the public parts of the apartment house,
  • obtained the consent of the condominium owners in accordance with the procedure provided for this purpose in the WEG.

We are pleased that we were able to help our clients to defend their rights. Through our successful intervention we have avoided that our clients have to bear the financial burden of correction of the constructive defects and constantly increased maintenance costs.

Please contact us if you, as a condominium owner or condominium owners’ association, would like to enforce warranty claims against the property developer due to constructive defects of public parts in apartment houses.

[Foto: Wikipedia, Werkfrei]