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#TodayInDispute provides you with the latest updates in the field of dispute resolution and can also be received via LinkedIn and Twitter.

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07.08.2019 #TodayInDispute: “Unfair Competition: Summer Edition” The Austrian Supreme Court recently was confronted with an “ice-cream case”: The claimant sells and advertises a well-known oval ice-cream bar coated with two layers of chocolate and fillings in different flavors (“Magnum Double”). The (first) Respondent sells and markets ice-cream under the name “Gelatelli Double” which matches the Claimant’s product in structure and in offered flavors. The Claimant inter alia filed a cease-and-desist claim arguing that Respondent’s product is an Imitation and violates Austrian competition law due to deception of origin and by freeriding on Magnum’s popularity. However, the Supreme Court sided with the Respondent. It noted that in order to promote free competition, market participants are free to offer imitating products. Offering an imitation may, however, be unfair if the competitor fulfills certain additional criteria amounting to unfair conduct. This was not the case here: Magnum’s oval shape and multi-layered structure was not a characteristic feature that serves as an indication of the product’s origin to a specific company. The same applies to the term “Double”, which merely describes the structure of the ice-cream and is only secondary to the brand “Magnum”. Read more (in German) here.

30.07.2019 #TodayInDispute: Will there be a change in the ECJ case law on transfers of undertakings? The ECJ has currently to decide whether the transfer of a public bus service qualifies as transfer of undertaking and thus, triggers the TUPE provisions, if there is no significant transfer of tangible assets like buses but the majority of the personnel employed by the former operator were engaged by the new operator. In its previous case law, the ECJ ruled that bus transport is an asset-intensive business. Accordingly, the transfer of tangibles was considered to be decisive for the qualification of a transfer of undertaking. However, this case law could now be softened. According to the Advocate General, the question whether there is a transfer of undertaking or not – even in cases of asset-intensive businesses – cannot be reduced to determining whether the tangible assets are transferred from the old to the new operator but rather all facts and circumstances relating to the transaction have to be assessed. If the ECJ follows the Advocate General, this may have an impact on the future assessment of whether or not a transfer of undertaking is given. The Opinion of the Advocate General (in German) can be found here.

29.07.2019 #TodayInDispute: “Exceptions to an exclusive right” Volker Beck, a German politician, uploaded a text he had authored in the 80s to his website in order to distance himself from its questionable content. Spiegel Online then published an article containing hyperlinks to Mr. Beck’s text. Mr. Beck sued Spiegel Online and argued that making those documents available on the Spiegel Online website infringed his copyright. The case was brought before the German BGH, which requested a preliminary ruling from the CJEU. In its judgment, the CJEU inter alia noted that under the Copyright Directive 2001/29 Member States enjoy discretion in applying exceptions and limitations to the copyright holders’ exclusive right to reproduce their work or to communicate it to the public. The Court also held that the protection of intellectual property rights is not absolute and that it is necessary (where appropriate) to take into account the fact that the nature of a ‘speech’ or information is of particular importance, notably in political discourse and discourse concerning matters of public interest. If Member States allow the use of protected works in connection with the reporting of current events, Member States cannot subject the exception to the author’s prior consent. Read the full decision here.

19.07.2019 #TodayInDispute: Hired-out employees are not covered by the Austrian provisions on transfer of undertakings. Thus, their employment agreements do not transfer by operation of law, if the user enterprise is sold. Pursuant to the Austrian Supreme Court, this also holds true if the hiring-out takes place within a group and over a period of several years. In the case at hand, the employee, who was previously working for the employing company, was already hired-out to a group company for more than five years at the time the transfer of undertaking took place. As the employment relationship of the hired-out employee was not covered by the transfer, the employee’s claim for employment with the purchaser of the company was rejected by the Austrian Supreme Court. The ruling (in German) can be found here.

15.07.2019 #TodayInDispute: A different treatment of employees based on different working time models does not violate the principle of equal treatment pursuant to a recent Supreme Court ruling. Thus, employers may exclude employees on a flexitime model from an annual bonus regime, which is granted to employees on an annual working time scheme with an all-in remuneration. This especially holds true if the different working time models are applied to specific groups of employees. In the case at hand all project managers were on the working time scheme with a bonus and all system engineers, such as the plaintiff, on the flexitime scheme without a bonus. The plaintiff’s claim to a bonus based on an infringement of the principle of equal treatment was reject. The ruling (in German) can be found here.

09.07.2019 #TodayInDispute: German employers be aware! A home office solution for an employee in Austria may likely trigger a permanent establishment under Austrian tax law as well as under the double taxation agreement between Austria and Germany according to a recent statement of the Austrian Federal Ministry of Finance. Using a notebook and a mobile in the home of the employee may already fulfill the criteria of such a permanent establishment pursuant to the statement. However, whether a permanent establishment is given has to be assessed by the respective Austrian tax authority based on the facts of each individual case. The statement (in German) can be found here.

05.07.2019 #TodayInDispute: as of 1 August 2019, all times of parental leave have to be fully taken into account for all employment entitlements which depend on the length of service. Such employment entitlements are for example the statutory vacation entitlement, the period of continued remuneration in the event of illness, the length of notice periods and salary increases. However, the new law does not apply retroactively. Thus, it only applies to future times of parental leaves. The proposal on which the law is based can be found here (in German language).

04.07.2019 #TodayInDispute: “On the Limits of Directly Enforceable Agreements” In a recent decision, the CJEU elaborated on the effects of directly enforceable B2C agreements in enforcement proceedings before member state courts. The case brought before the CJEU concerned a directly enforceable mortgage agreement concluded in the form of a notarial deed between a Slovenian bank and two Slovenian consumers. In essence the Court held that in order to guarantee the effectiveness of the consumer protection provisions enshrined in the Directive 93/13/EEC on unfair terms in consumer contracts, national courts must be entitled to examine within the enforcement proceedings whether the terms of the enforceable agreements are unfair within the meaning of Directive and to suspend the enforcement proceedings, if appropriate. Issues of unfair terms in consumer contracts shall not be reserved for possible subsequent contentious proceedings initiated by the consumers. National procedural rules that do not allow for the assessment of the enforceable agreement’s provisions in the enforcement stage and a consequential stay of the proceedings therefore are an impediment to the effectiveness of the Directive. Read the full decision here (in German).

03.07.2019 #TodayInDispute: paternity month (“Papamonat”) entitlement for fathers and second parents. As of 1 September 2019, fathers and second parents are entitled to a paternity month in connection with the birth of their children. Employees, who want to make use of the paternity month, have to notify the employer at least three months before the calculated date of the birth of the child. Exemptions for premature births apply. The entitlement to the paternity month is supported by a special protection against termination of the employment. The proposal on which the law is based can be found here (in German language).

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