18.06.2019 #TodayInDispute the new Work-Life Balance Directive. On 13 June 2019 the Council adopted a new directive on work-life balance for parents and carers in the EU. The directive will enter into force on the twentieth day following the publication in the Official Journal of the EU. The Member States then have three years to implement the directive into national law. The directive especially introduces minimum standards on (1) paternity leave for fathers or second parents (10 working days), (2) on parental leave (4 months), (3) on carer’s leave due to serious medical reasons (5 working days) and (4) on flexible working arrangements (until the child is 8 years old). The text of the directive on work-life balance for parents and carers can be found here.
04.06.2019 #TodayInDispute: A post-contractual restraint of trade clause, which unreasonably restricts the future activity of an employee, is not enforceable. However, for the period of such a post-contractual restraint of trade clause, employees are not allowed to poach customers from their former employer pursuant to a recent Supreme Court decision. According to the Supreme Court, this applies even without the explicit agreement of a non-solicitation of customers clause between the former employee and employer and despite the fact that the post-contractual restraint of trade clause itself, with regard to the activity for a competitor, is not enforceable. A post-contractual restraint of trade agreement, therefore, may often include a non-solicitation of customers clause - even if this was not explicitly agreed. The ruling of the Austrian Supreme Court (in German) can be found here.
17.05.2019 #TodayInDispute: If illness or accident leads to the inability to work, an employee is only entitled to continued remuneration if he does not cause the illness or accident gross negligently or even intentionally. However, the gross negligence or the intention must be proven by the employer. This was confirmed in a recent Austrian Supreme Court case where an accident of the employee with the bicycle led to his inability to work. The employer claimed that the employee caused the accident gross negligently because he was drunk. However, the burden of proof in that respect was with the employer. Eventually, the employer could not prove that the employee was actually drunk. Accordingly, the employee did not lose his entitlements to continued remuneration. The ruling of the Austrian Supreme Court (in German) can be found here.
15.05.2019 #TodayInDispute: The ECJ ruled yesterday that employers are obliged by European Union law to set up a system enabling the duration of time worked each day by each employee to be measured. According to the Charter of Fundamental Rights and the Working Time Directive, every employee has the right to a limitation on the maximum number of working hours and to daily and weekly rest periods. Without such a working time recording system it is not possible to ensure whether the maximum weekly working time – including overtime – and minimum daily and weekly rest periods have been complied with. The ECJ ruling (in German) can be found here.
10.05.2019 #TodayInDispute: A WhatsApp message does not fulfill a written form requirement for a notice of termination of the employment. However, if the employee decides to accept the invalid termination, the violation against the form requirement is healed and the employment is terminated. The ruling of the Austrian Supreme Court (in German) can be found here.
07.05.2019 #TodayInDispute: “Destination: Ireland” As regards a dispute arising out of the operations of a branch, agency or other establishment, Article 7(5) of the Brussels I Regulation states that a person domiciled in a Member State may be sued in the courts of the place where the branch, agency or other establishment is situated. However, according to the preliminary ruling of the CJEU in Case C-464/18 Ryanair, a branch of an airline in a member state does not establish international jurisdiction for a compensation claim under the Flight Compensation Regulation 261/2004 in accordance with Article 7(5) of the Brussels I Regulation if the passenger did not conclude the contract with or through that branch. Click here for the entire judgment.
03.05.2019 #TodayInDispute: “The Limits of Compensation“ The Austrian Supreme Court recently clarified that even in the event of the termination of an agency agreement by the agent, Section 24(3)(1) of the Austrian Agency Act (“HVertrG”) entitles the sales agent to claim compensation if “circumstances attributable to the principal” constituted good cause for the termination, but not if external risks occurred. The term "circumstances attributable to the principal" and the concept of good cause must be interpreted broadly. The reason for this broad reading is that the agent shall not be forced to remain in a situation that is no longer tenable due to circumstances in the sphere of the principal. In the present case, the agent’s contractual distribution area for the sale of highway toll stickers was limited to a specific gas station leased by the agent. The lessor, a third party, cancelled the lease contract. The agent subsequently terminated the agency agreement but its compensation claim against the principal was denied since the cancellation of the lease agreement was not attributed to the sphere of the principal. To read the full decision (in German) click here.
02.05.2019 #TodayInDispute: The Austrian Supreme Court clarifies the role of contributory negligence of an informed “skilled” investor – in this case a private foundation – in a case where the investor claimed damages for a false investment advice. The plaintiff bought certain investment certificates issued by one of the defendant’s subsidiaries based of the defendant’s recommendation. The respective prospectus contained incorrect, incomplete and unrealistic information about the yield prognosis, scenario calculations as well as the risks involved. The defendant’s representatives were aware of the prospectus’s shortcomings. The Austian Supreme Court decided that the incorrect information was in the sphere of the defendant and the issuer and was not verifiable for outsiders. Therefore, even considering the fact that the plaintiff had expert knowledge, no contributory negligence could be assumed. The decision (in German) can be review in full here.