05.04.2019 #TodayInDispute: “Gaming without borders” in 2017, the European Commission initiated antitrust proceedings against Valve, a software developer and owner of Steam, a video game distribution platform, as well as 5 video game publishers. The Commission informed the parties in a Statement of Objections that they have likely violated EU competition law by using geo-blocked activation keys to prevent cross-border sales of video games. This may have prevented consumers from buying cheaper games available in other member states. Further, according to the Commission’s preliminary view, the 5 publishers have acted contrary to EU antitrust law by including export restrictions in their contracts with other distributors apart from Valve. Commissioner Vestager stated that “In a true Digital Single Market, European consumers should have the right to buy and play video games of their choice regardless of where they live in the EU.” More information can be found here.
01.04.2019 #TodayInDispute: Austrian Supreme Court clarifies limitation periods regarding the Austrian Commercial Agents Act (HVertrG): Section 18(3) HVertrG stipulates (in favour of the commercial agent) that the limitation period for his claims is suspended as soon as he has registered them with the principal. This suspension lasts until the principal provides a written reply. The Supreme Court has now clarified that such suspension may also apply to post-contractual claims for a commission fee from business transactions to be concluded in future between a third party and the principal after termination of the agency agreement. In such a case it is only required that it is sufficiently clear from the agent’s declaration that he wishes to settle a concrete, clearly assignable claim and that there is no doubt as to the agent’s involvement in the future transaction. Regarding the minimum requirements for the principal’s reply (until which the limitation period is suspended), the Supreme Court has ruled that the commercial agent must be able to assess whether he can expect his claim to be satisfied. The reply, however, neither has to comply with the written form requirement of section 886 ABGB (i.e. no signature required), nor does it have to contain a conclusive statement of consent or rejection. The Supreme Court’s decision can be reviewed here (in German).
27.03.2019 #TodayInDispute: “Employee/Consumer” In its recent decision in Pouvin and Dijoux v EDF, the CJEU has held that if an employer grants an employee a loan to finance the purchase of real estate for private purposes, the contract is subject to Directive 93/13/EEC (on unfair terms in consumer contracts). While the Directive excludes employment Agreements from its scope of application, the Court held that the agreement between the employer and the employee neither governed the employment relationship nor the working conditions and can therefore not be classified as an employment agreement. To read the full decision, click here.
20.03.2019 #TodayInDispute: ECJ clarifies liability for damages under article 101 TFEU after restructuring: In its Judgment of 18 March 2019, the ECJ has established ground rules for the liability of companies which continue the economic activities of cartel members. In the Finish asphalt cartel, Finish companies were sued for damages based, inter alia, on the argument that they had first become the sole shareholders of companies which were cartel members, had then liquidated the latter and taken over their business. The ECJ explained that it was long-standing practice to impose fines on the sole shareholder in such cases. It then went on to explain that the same rationale applies in the case of claims for damages. If such companies were not found liable for damages, the companies immediately responsible for an infringement of the EU competition rules could escape liability by simply changing their identity through restructurings, sales or other legal or organisational changes. This would undermine the effectiveness of EU competition law. Hence, the sole shareholders were found liable for the losses caused by the companies which they had taken over and liquidated. Click here for the ECJ’s judgment.
“Russian Vodka, Dutch Decisions Part 3” In the last decision in the ongoing dispute about two Vodka trademarks, the Austrian Supreme Court held that even if a pending legal dispute has already passed through the appellate stages and has be remitted to a lower instance court, the latter must not only take into consideration changes in underlying applicable law or binding new CJEU jurisprudence, but also a new decision of a foreign court which has binding effect. In the case at hand, the Supreme Court has stayed the Austrian proceedings until the Dutch Hoge Raad has ruled on the issues of legal standing of the claimant and prescription. To be continued… Read the latest Supreme Court decision here.
If you are interested in the first two decisions, please see our previous TodayInDisputes from 8 and 9 August 2018.
“What happens in Greece stays in Greece“ Following the forced conversion of Greek state bonds, an Austrian claimant sued Greece for damages before Austrian courts. The first instance court confirmed that it had domestic jurisdiction but rejected the claim for a lack of international jurisdiction. The second instance court confirmed the first instance court’s findings on domestic jurisdiction but held that Austrian courts had international jurisdiction. The Supreme Court noted that in general Austrian courts lack domestic jurisdiction for damages claims against a foreign state if the asserted claim relates to a sovereign act of the foreign state. In the case at hand, the CJEU has held in a preliminary ruling that Greece’s actions in relation to the forced conversion constituted a sovereign act. However, since both the first and second instance court have confirmed domestic jurisdiction, Austrian procedural law binds the Supreme Court to their decisions. This binding effect exists despite the CJEU’s deviating assessment under EU law. However, the CJEU has also held that the Brussels Ia Regulation was not applicable to the underlying dispute. The Supreme Court therefore upheld the first instance’s decision and rejected the claim. Read the decision here.
"Not every tribunal is an arbitral tribunal” The Austrian Supreme Court serves as the first and only instance in setting aside proceedings. In a recent decision, the Supreme Court clarified that only awards rendered by arbitral tribunals established under Sections 577 et seqq of the Austrian Civil Procedural Code (“ZPO”) can be subject to annulment proceedings before the Supreme Court pursuant to Section 611 ZPO. An “arbitral tribunal" established under the statues of an association (“Vereinsschiedsgericht”) does not qualify as an arbitral tribunal within the meaning of the ZPO. This may not come as a great surprise to the parties, as the claimant itself qualified the tribunal as an internal conciliation board established in accordance with Section 8 of the Austrian Act on Associations, but not an arbitral tribunal established under Sections 577 ZPO. Click here to read the full decision (in German).
The Austrian Supreme Court recently provided for several clarifications concerning the GDPR and the disclosure of personal data in court proceedings. The Austrian Supreme Court confirmed that the right to erasure of personal data under the GDPR can be enforced in civil courts. It further stated that the GDPR’s household exemption, which applies to the processing of data of purely personal or household activities, ceases to apply when such data is provided to an expert or a court. Thus, in the case at hand the GDPR was applicable to private emails and chat protocols of an ex-wife, which were disclosed to an expert and the court in custody proceedings by the ex-husband. The ex-husband, as controller of that personal data, had to comply with the GDPR. The Supreme Court finally determined that personal data has to be erased as soon as no further purpose for its processing is given. Thus, once the data had been used by the ex-husband in the proceedings, it had to be erased as the ex-husband did not substantiate any additional purposes (e.g. exercise or defence of future claims) for the processing of that data. The ruling (in German) can be found here.
Good Friday Update: In reaction to an ECJ ruling, the Austrian legislator decided on Wednesday that Good Friday will not be a public holiday in Austria anymore. All Austrian employees, however, are entitled to determine unilaterally one day of their statutory vacation entitlements as a “personal” holiday per vacation year, subject to notification of the employer at least three months in advance. In the first three months after the law came into force, however, a shorter period of two weeks for the employer’s notification applies, to allow Good Friday (19 April) to be chosen as a “personal” holiday also in 2019. If employees - upon request of the employer - decide to work on their already chosen “personal” holiday, they are entitled to holiday surcharges. In that case the right to unilaterally determine one holiday per vacation year is consumed. The statute (in German) can be found here.