• Austrian Hard disk drive levy: OGH confirmed payment obligation of Amazon

    Decision of the Supreme Court: The exploitation company Austro-Mechana prevails in the long lasting litigation with Amazon.

    The long-awaited decision in the legal dispute about the so-called hard disk levy was taken - in favor of the exploiting company Austro-Mechana. According to the Supreme Court (OGH), a levy for storage media delivered to Austria corresponds to EU law. This means that the online retailer Amazon, which has resisted the hard disk drive, is obliged to pay. The US Internet giant was sued in 2007 by the Austro-Mechana because he refused to pay.

    Amazon saw in the hard disk a violation against the prohibition of discrimination - the collecting societies promote with the revenues namely artists active in Austria. In a case against several companies of the Amazon group, the Supreme Court, after a preliminary ruling by the ECJ, made the final decision: "The manufacturer or importer is obliged to pay the goods when he delivers to a reseller or a private end-user; There is no obligation to pay for a delivery to non-private end-users, "the OGH states.

    The Austro Mechana expects Amazon to transfer the amount in double-digit millions over the next three years. "We are very glad to have finally obtained clarity and legal certainty for the art-makers.The OGH has made a correct decision and confirmed the obligation to pay for a multiterritorial group which has tried to evade its obligations under Austrian and European law for more than 10 years" , The collecting society is shown in a press release easier.

  • No higher cost reimbursement for Austrian criminal lawyers

    Provisions in the Criminal Procedure Act are constitutionally compliant.

    The provisions for the reimbursement of defense costs after termination of criminal proceedings are constitutionally compliant. They are not unlawful and do not violate the right to property integrity, the Constitutional Court stated. Some complainants had tried to obtain a higher lump sum, especially for complex economic procedures. They argued that the ceilings for the flat rate were too low.

    There is a maximum of 10,000 euros for jury processes, 5,000 euros for trials before a jury's court, 3000 euros for district court rulings and 1000 euros for district court rulings. This graduation was based on objective criteria, the VfGH stated.

    At all, constitutionally, it was not necessary for the defendant to be compensated for his defender's costs if he was acquitted or terminated. In principle, the Code of Criminal Procedure provides that a defendant is to bear the costs of his representation entirely. Nor can a claim for compensation be derived from the European Convention on Human Rights.

    The VfGH does not allow the comparison with the civil procedure in which the losing party is to bear the costs of the opponent. Prosecutors and defendants are not comparable with the parties in a civil process. The Supreme Court pointed out the possibility of an imprisonment against a supposedly unlawful charge. This could also entail defense costs.

  • Austria challenges the new German Highway Toll

    30th March 2017. The controversial high way toll in Germany has taken the last hurdle: After years of disputes, the road for the introduction of a car toll on German motorways and federal roads is free. On Friday, the Federal Council passed a package of legislation passed by the Bundestag, with which the EU Commission would give the green light for the "infrastructure levy".

    Austria had already threatened an action before the European Court of Justice (ECJ) immediately after the Bundestag decision of the last week - and confirmed it on Friday. "We will sue the toll," said Transport Minister Jörg Leichtfried (SPÖ) in front of journalists. The German "Ausländermaut" was a "discrimination based on nationality". The action is to be "relatively prompt". As soon as the EU Commission ceases the infringement proceedings against Germany, Austria will bring the lawsuit down, announced Leichtfried. According to the Minister of Transport, Federal Chancellor Christian Kern (SPÖ) has already discussed the toll road with German Chancellor Angela Merkel. Today, Friday, the car toll was decided in the German Federal Council.

    Criticism was also exercised by Leichtfried at the Commission. "The action of the European Commission is a scandal". The EU Commission had agreed with Germany on a compromise on passenger car tolls.

    The German transport minister Alexander Dobrindt (CSU) can now tackle the next steps for the previously stopped toll introduction. Actually, the central goal of the Christocials in the black-red coalition had already been decided in 2015. However, as Brussels shortly after opened a case concerning the infringement of EU law against Germany, the laws were not yet implemented.

    The central issue was the accusation of a disadvantage for drivers from abroad, as only resident nationals are to be fully relieved of payments for a reduction of the car tax. However, in December 2016, Dobrindt agreed with the EU Commission on changes to the model.

    These improvements are now decided. In concrete terms, the prices of the short-term tariffs for drivers from abroad should be differentiated. In the case of Euro-6 cars with exhaust-gas-poor cars, a reduction of € 100 million is to be made in addition to the car tax. There are still doubts about the annual target of EUR 500 million and compatibility with EU law. Starting is the actual toll collection only 2019.

    The Länder Chamber recommended recommendations from the relevant committees to call the joint mediation committee with Parliament. This could have delayed the procedure.

    The Länder had still demanded toll-free sections of the motorway in border regions, and the federal government rejected this. Dobrindt has announced that it will start a Europe-wide call for tenders after the end of the legislative process. Through the parties and in many German federal states, sharp criticism of the passenger car tolls is taking place. Baden-Württemberg's Transport Minister Winfried Hermann (Green) said in the Federal Council that it was "not a good sign for Europe" when Germany introduced a "foreigner" toll. The result is "politically great damage".

    The Rhineland-Palatinate Transport Minister, Volker Wissing (FDP), also declared that the toll on retail and gastronomy posed unnecessary economic risks. The "small border traffic" is made more difficult. FDP chief Christian Lindner spoke of a "useless toll". It cost more than it does and is "exactly the wrong signal to our neighbors" in times when we need to re-engage in more European cooperation. "

  • No need to change the Austrian Gambling Law

    The Austrian Supreme Court (OGH) stated that the law on gambling does not violate Austrian constitutional law or Union law. Therefore, adventitious advertising for gambling is permitted in Austria.

    The Gambling Act (GSpG 1989) provides for strict measures to regulate the gambling market. This includes a number of limitations, reliability checks, and compulsive gaming controls for big lucky games. "The justification of these regulations, as well as the admissibility of moderate advertising by concessionaires, seemed to be undisputed," says Gerhard Strejcek, board member of the Center for Gambling Research.

    "But then the Supreme Court approached the Constitutional Court in March 2016 with an application for regulatory control. He argued that the case-law of the European Court of Justice (ECJ) prohibited an appropriate advertising and, if possible, to the inapplicability or unconstitutionality of individual regulations of the GSpG, "says Dietmar Hoscher, CEO of Casino Austria.

    According to the ECJ's jurisprudence, an EU member must pursue a coherent national gambling policy, with which the state efficiently pursues public interests such as gambling protection and the fight against money laundering. However, the question of whether national measures are proportionate is left to the national courts by the ECJ.

    Shortly after the OGH submitted its law examining petition to the VfGH, the Administrative Court published the findings of 16 March 2016. In this the VHGH dealt extensively with the advertising measures used in Austria and came to a completely different conclusion from the OGH: The relevant provisions of the GSpG are not contrary to unions law.

    On 15 October 2016, the VfGH rejected the OGH’s applications for formal reasons as inadmissible.

    Interestingly, however, he was concerned with the constitutional and Union-law consistency of the GSpG in a statement of the same day - although in another complaint - with regard to content. He also contradicted the view of the OGH. Neither the GSpG of the Austrian Constitution nor the Unions right contradicts, his conclusion. "The OGH considers in isolation the concrete activities of individual concessionaires without taking an overall appraisal of the effects on the gaming market in the sense of the jurisprudence of the ECJ," the VfGH criticizes the OGH.

    Dietmar Hoscher is, of course, pleased with this decision: "Thus, it seems to be clear that both courts of public law have no reservations about the GSpG and the applied regulations of the machine-game law of the Länder."

    And how did the OGH react to the decisions of the Constitutional Court? He could have improved his statutory auditors' application. He did not, however, but opted for a more pragmatic approach. By decision of 22 November 2016, he decided to pursue the interrupted proceedings and to decide these cases on the basis of those arguments which led the VfGH in its finding of 15 October 2016 to deny the unconstitutionality of the Austrian gambling monopoly .

Liegt eine Parteienhäufung vor, so sind gemäß § 55 Abs 1 Z 2 JN mehrere in einer Klage geltend gemachte Ansprüche zusammenzurechnen, wenn sie von mehreren Parteien oder gegen mehrere Parteien erhoben werden, die Streitgenossen nach § 11 Z 1 ZPO sind. Das Gesetz verlangt somit im Bereich der Parteienhäufung das Vorliegen einer materiellen Streitgenossenschaftächster Suchbegriff entweder auf Klags- oder auf Beklagtenseite. Es muss somit entweder eine Rechtsgemeinschaft hinsichtlich des Streitgegenstands bestehen oder eine Parteienmehrheit, die aus demselben tatsächlichen Grund (allenfalls sogar solidarisch) berechtigt oder verpflichtet ist. Liegt hingegen – wie hier – lediglich eine formelle orheriger SuchbegriffStreitgenossenschaft nach § 11 Z 2 ZPO vor, kommt es selbst dann nicht zu einer Zusammenrechnung der Streitwerte, wenn die geltend gemachten Forderungen in einem tatsächlichen oder rechtlichen Zusammenhang stehen (vgl RIS-Justiz RS0053096 [T10]). Ist in einem Verfahren Anspruchs- und gleichzeitig Parteienhäufung gegeben, sind bei Vorliegen der Voraussetzungen des § 55 Abs 1 Z 1 JN zwar die gehäuften Ansprüche der betreffenden Partei zusammenzurechnen, nicht jedoch diese Ansprüche mit jenen der übrigen formellen Streitgenossen (vgl Gitschthaler in Fasching/Konecny3 § 55 JN, Rz 23 und 23/1).