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Green leases all the rage in commercial leasing
Preventive restructuring implemented in the Czech Republic: a revolution in Czech insolvency law
A long-awaited bill on preventive restructuring (the "Bill") implementing the directive on preventive restructuring frameworks in the Czech Republic will introduce a brand-new legal tool preventing the insolvency of viable enterprises in temporary distress.
Legal aspects of non-performing loan transactions in Bulgaria
The market for non-performing loan (NPL) transactions is expected to grow, as a result of the COVID-19 pandemic. This article outlines some of the most important legal aspects around NPL transactions in Bulgaria.
New warranty rules: old wine in new bottles?
Two new directives are trying to shape Europe's warranty rules. Member States must apply the Digital Content Directive ("DCD") and the Sale of Goods Directive ("SGD") from 1 January 2022. Austria and several others already implemented the DCD and the SGD in 2021.
Cross-border mergers in Serbia: clash of laws postponed?
The Serbian Companies Act defines cross-border mergers as mergers of at least one commercial entity registered in Serbia and at least one commercial entity from EU Member States or states signatory to the EEA Agreement.
Judgments issued ex machina? Are AI-made judicial decisions the future?
Digitalisation is invading all areas of our lives, including the judiciary. It is impossible to imagine everyday legal life without electronic legal transactions, the electronically managed land and company registers, the edict file or the possibility of submitting briefs to courts in electronic form.
Sustainability and competition law: green light for sustainable cooperation agreements
Environmental protection and climate change are by far the hottest topics in contemporary competition policy. The European Green Deal, signed by the EU 27, sets out to make Europe the first climate-neutral continent by 2050, where economic growth is decoupled from resource use.
The EU Clinical Trial Regulation: big data and … human rights
The new EU Clinical Trial Regulation ("Regulation No 536/2014" or "CTR") was published in May 2014 as Regulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use. It repeals Directive 2001/20/EC and is applicable to a certain extent as of the end of January 2022.
Coming soon: The European Patent with Unitary Effect
The European Patent with Unitary Effect ("Unitary Patent") already has a longstanding and ambiguous history, although its underlying legal framework has not yet come into force. But 2021 brought a considerable push towards implementation of the Unitary Patent system.
Keep your records clean: Why it is absolutely necessary to keep trademark registers up to date
Change is part of everyday life. Some changes are temporary, some more permanent while we adapt to various challenges. However, particular attention should be paid to scenarios where the changes affect registered data.
The Digital Content Directive and the Sale of Goods Directive: when to apply which?
The constant and growing development of new technologies is leading towards an increasing availability of various digital products for consumers. This, in turn, triggers competitiveness and consumers' ever-greater expectations about the offerings, the ease of their purchase and conclusion of contracts without leaving home.
Design law: What's up-and-coming?
The most important material aspects derived from national legislations on protection of designs are harmonised in Community Design Directive 98/71/EC of 1998. Besides existing national legislations providing national design protection, Community Design Regulation No 6/2002 was introduced in 2002 and created a unified system for obtaining community designs to which uniform protection is given with uniform effect throughout the EU.
Does the Digital Services Directive stipulate a right to updates?
The new Digital Services Directive (DSD) aims to harmonise certain aspects of consumer protection law by providing consumers a mandatory warranty for digital content and digital services supplied by a vendor. First and foremost this concerns contracts on the purchase or rental of software (usually comprising licence agreements) or cloud services.
The new Czech Building Act
A new Building Act No. 283/2021 Coll. was approved in the Czech Republic and most of it is slated to take effect on 1 July 2023. But the right-wing coalition that won the parliamentary election in October 2021 is already planning to suspend its effect and amend it.
A land registry that aims to protect investments in the 21st century
Aside from some temporary regulation, Act C of 2021 on Land Registration will enter into force on 1 February 2023, introducing several practical novelties for private citizens and companies as well as lawyers.
Major changes to Slovak construction law on the way
Slovak construction law is governed by a Building Act that has been in force since 1976. It was first adopted in an entirely different political and economic situation and no longer reflects the requirements of a market economy, despite countless amendments. The current Building Act as well as the whole real estate sector can be characterised by complicated and lengthy administrative and permitting processes.
Drafting laws – that's learning by doing
Schoenherr partners Miriam Simsa and Wolfgang Höller talked to Dr. Franz Mohr, Head of the Department for Execution and Insolvency Law at the Federal Ministry of Justice, about the process of drafting laws, the restructuring directive and more.
Multilateral Convention: a gamechanger for corporate taxation
In 2021, representatives of 136 OECD (Organisation for Economic Co-operation and Development) countries agreed on a major reform concerning the current rules of international corporate taxation.
Austria's corporate tax regime goes green
In November 2021 the Austrian government outlined its draft for an eco-social tax reform, which intends to combine substantial tax relief through various (tax rate) measures as well as a significant increase of the tax burden for unsustainable, polluting behaviour by private households and companies.
Must whistleblowers conduct their own investigations before reporting?
With the Whistleblowing Directive (Directive (EU) 2019/1937) of 23 October 2019, the EU has created a legal framework for whistleblowers. The Directive provides rules for internal and external reporting as well as measures to protect whistleblowers.
Evidence no. 5. How to sniff out cybercrimes and build a successful case
More and more companies are being subjected to cyberattacks. To effectively respond to this criminal phenomenon, it is essential to be prepared, meaning making sure you have solid evidence to build a criminal case.
A new reality coming for Polish groups of companies
Work is underway to amend Poland's corporate law by introducing a "holding law" or "group of companies law", which would not only govern relations between a parent company and its subsidiaries, but also recognise the interests of creditors, minority shareholders and members of corporate bodies.
The perfect time to be a buyer?
During economic downturns valuations drop and dealmakers rightly expect a shift from a sellers' to a buyers' market. It is uncertain whether this will prove to be true for the COVID-19 recession. Among other factors, it will depend on the extent of promising acquisition opportunities as well as on the availability of stimulus money (both from government and other financing resources).
General meeting decision-making process to become more flexible
Czech Act No. 90/2012 Coll., on Business Corporations ("BCA") provides that the options for making decisions within the general meeting or outside the general meeting by letter (per rollam) using technical means (e.g. Webex or Skype electronic conferencing tools) must be permitted by the company's constitutional document.
Restructuring tools for companies in economic crisis
Austrian tax law provides various reorganisation tools for companies in an economic crisis. Among others, these include shareholder contribution (in the broad sense), debt/equity swap, debt waiver, assumption of debt, letter of comfort, participation right, capital decrease, surety/guarantee, assumption of performance, silent partnership, debt mezzanine swap and restructuring trust.
M&A going forward: speed is the new currency
The global pandemic has left local economies shaken. It is increasingly clear that the recovery will not take a "V" shape but will rather look like a "swoosh" logo. This turmoil has left many local and regional companies distressed, unable to pay their debts when due or at very best in breach of financial covenants.
COVID-19 – a catalyst for digital assets and crypto trading regulation?
The economic impact caused by the COVID-19 pandemic has not only significantly changed the way we work, travel and shop, but has sent a large number of investors on the search for assets that can provide a safe haven during the ongoing crisis and its macroeconomic events.
Austrian Limited: a new type of corporation for start-ups in Austria
The agenda published by the Austrian Federal Government at the beginning of 2020 has already provided for the establishment of a new type of corporation: the Austrian Limited. Implementation plans are becoming more concrete. The general aim is to ensure that founders and start-ups have an "internationally competitive option" in the early stages with a new form of corporation.
IT projects: Everything agile or still waterfall?
Agile project methods have been a topic of conversation for years. There is hardly a management consultant who does not swear by them and hardly a company that does not prescribe "agile" as a miracle cure for many homemade problems. Agility in project management has almost become mandatory, for better or worse.
Evaluate, Adapt, Litigate
Litigation in times of crisis
2020 turned out to be quite a challenge. Public life as we knew it until February 2020 ceased to exist for an extended period of time and we are still trying to adapt to the new situation. The coronavirus does not only keep schools, companies and the health sector on its toes, public life, including the courts, is also affected.
Public procurement is not immune to COVID-19
The coronavirus has also infected public procurement, creating new challenges for companies and public purchasers. At least in the short term, exemptions have become the rule, procurement procedures have gone almost completely electronic, and new contracts have had to be "COVID-secured". Some of these measures have an expiry date, others will probably remain.
Adapting (to) circumstances – the CFO crisis management checklist
The precise impact of the COVID-19 pandemic on global and regional economies remains far from certain. On the other hand, it is more or less accepted that most, if not all corporations will need to adapt to new market circumstances.
"The key to success is the ability to adapt." (Confucius)
But is there only one way to successfully adapt local insolvency laws to limit the negative economic consequences of the COVID-19 pandemic?
New residential projects in rust zones: the hero the Hungarian residential construction industry deserves after COVID?
Thanks to numerous governmental measures, such as the introduction of the 5 % VAT rate, favourable conversion of foreign currency loans, baby waiting loans and VAT refunds, the number of Hungarian residential construction projects increased by the end of 2019.
Why it's necessary to review acquisition titles to real estate in the Czech Land Register
When buying real estate can you rely on the record of ownership rights in the Land Register or do you also have to review the acquisition titles of previous owners (purchase agreement, etc.)?
Distressed M&A on the horizon: Merger control considerations to adapt to a new transactional environment
In response to the initial outbreak of COVID-19 several countries declared a state of emergency. As an immediate consequence, timelines for reviews of notified transactions were extended or even suspended.
Ready for the cladogenesis of traditional healthcare?
It's June 2019 and the key players from the digital, healthcare and pharma industry have gathered at the Health Tech Summit in Lausanne to discuss a future in which preventive medicine will be customised for each patient. The idea is based on three milestones: active life (sports), mental health (healthy lifestyle) and eating habits (food). Poor eating habits and stress especially lead to the early onset of chronic diseases, costing the healthcare system billions of euros.
The EU's capital markets recovery package
The severe economic repercussions of the COVID-19 pandemic call for rapid measures to facilitate investments in the real economy, to allow for a swift recapitalisation of EU companies, and to enable issuers to tap into public markets at an early stage in the recovery process and increase banks' capacity to finance the recovery.
Bulgaria and Croatia join ERM II and the Banking Union
On 10 July 2020 the Bulgarian lev and the Croatian kuna were included in the Exchange Rate Mechanism II (ERM II). In the short term this means that the inclusion would support the confidence and credit ratings of the two countries while in the long term – this is an important milestone in Bulgaria and Croatia's efforts to join the euro area.
Investor relations: How to build solid bridges in stormy weather
Stock market investors' trading decisions are influenced by a myriad of factors, including economic, social and political changes. Their investment behaviour changes in volatile periods to adjust to the new landscape. Yet, a constant remains: investors want timely, accurate and complete information on listed issuers. How can issuers meet this expectation even in turbulent times?
The European Central Bank adapts its own funds and liquidity coverage ratio rules to COVID-19
Already at an early stage of the COVID‑19 crisis the European Central Bank (ECB) adopted several supervisory relief measures to allow banks to absorb losses and keep lending to the real economy.
How to be a mediation champion
There's an old saying that in a successful mediation both sides walk away unhappy. While compromise indeed lies at the core of mediation, we have devised a set of golden rules that a party and its legal counsel should follow to maximise the chances of a favourable outcome – or at least to walk away less unhappy than the other side.
Potential obligation to provide additional parking spaces in Hungary: further construction tasks or costs
Real estate developers are not always aware of a potential obligation in construction law, namely the provision of additional parking spaces if refurbishment works result in an area increase or if there is a function change to the real estate concerned.
The Renewable Energy Expansion Act
The eagerly awaited draft of the Renewable Energy Expansion Act (Erneuerbaren-Ausbau-Gesetz) ("EAG") was published for evaluation on 16 September 2020. To achieve the goals of the Paris Climate Agreement 2015, the draft creates new framework conditions for the expansion of renewable energy in Austria. This article provides a first overview.
Quickly adapt with an e-commerce presence and digital business models
The COVID-19 crisis has forced many businesses to sell their goods and services online. Limitations on the number of people who can enter a store or restaurant have made e-commerce solutions necessary even for companies that have never used this channel before.
M&A going forward: speed is the new currency
Dealmaking has changed significantly after the outbreak of the pandemic. We have seen shifts not only in deal number and value, but also in the seller-buyer dynamics, in their expectations, the deal structure, and even in the parties' communication – with "remote" being the word of the year.
Bulgarian corporate life: Adapting to a new informal normal
The guiding principle of 2020 was adaptation and, as it seems, the tendency has been for corporate life to become more informal. Statutory deadlines have been pushed, legal requirements have been loosened, documents are more often filed online instead of in hard copy and shareholders meetings are held in absentia.
New technologies and legislation: speed of developments vs. legal adaptations
From self-driving cars to AI and new forms of cybercrime: new technologies are developing faster and faster. And so are the legal challenges, particularly since the legislator is usually only able to react, and not to proactively set the course in this field.
Internet platforms do not have to report the true online identity of copyright infringers
The internet as a remote platform for day-to-day human interactions has been growing exponentially for many years – and internet crime along with it. Therefore, the existing legal framework, which often comes from the "offline" age, is sometimes tested for its ability to cope with the new online reality.
Working from home in CEE
This has been a year of huge changes and challenges due to COVID-19. The pandemic has not only had an enormous impact on economies and businesses in general but also on approaches to work. Clearly it has had a revolutionary effect on the world of employment.
Employment trends in CEE
After another turbulent year marked by the COVID-19 pandemic, the new year brings (perhaps) some hope of a return to at least a "new normal" both as far as economic recovery and the world of work are concerned. With mass vaccination becoming a real possibility, this hope does not seem unfounded.
Secured lending CEE
With more and more players active in the corporate lending and secured finance markets across the CEE region, and multi-jurisdictional CEE transactions happening on a regular basis, counsels are challenged to navigate their clients through fragmented legal frameworks in various jurisdictions often with different sets of secured lending rules and must-knows.
cee overview - business to consumer protection
Consumer protection as a strategic goal of the EU
cee overview - compliance & criminal defence / corporate investigations & crisis management
The fight against corruption and white collar crime in CEE is intensifying
At the beginning of 2019, Transparency International painted a bleak picture of anticorruption efforts in Central and Eastern Europe.
Crisis Management – Schoenherr's innovative tools for companies
Crisis management is an essential part of each company's compliance system. In particular where possible criminal behaviour is suspected within the company, the management must react quickly, but also wisely.
cee overview - insolvency & restructuring
Increased Need for Restructurings on the Horizon?
Economic growth was relatively stable this past year in the CEE region. Despite global economic uncertainties caused by Brexit and trade disputes, businesses still benefited from high consumption and the availability of low-interest loans.
Auction-based Subsidies in the Renewable Energy Sector: Time to Forget the Safe Space of Guaranteed Tariffs
Subsidies for power generation from renewable energy sources (RES) are undergoing material structural changes in the CEE region.
cee overview - insurance
Insurance in Austria and CEE: An overview of key insurance law issues
In response to the growing need for legal advice in insurance and regulatory matters, Schoenherr focused on insurance law advice since 2006 and set up its own insurance practice group only a few years later to combine know-how and focus on industry-related advice in matters of interest for the whole European Economic Area.
Making things easier for issuers on capital markets: Turning points in prospectus rules
To facilitate company access to financial markets, the European Commission completed its action plan for a gradual building of the capital markets union in 2019. Most actions focused on breaking down barriers blocking cross-border investments. As part of these measures, starting mid-2019, new rules governing prospectus drafting became effective. Among others, the new paradigm lays the groundwork for easier access for issuers and improved investor protection.
Sustainable Finance – a trend to stay
With sustainable investment picking up globally, environmental, social and governance (ESG) considerations are gaining increasing importance in decision making and practices. Driven by the EU's need to close the approx. EUR 180bln per annum funding gap to achieve its climate and energy goals by 2030, sustainable finance has consistently risen in the policy agenda since 2018+.
Exchanging views on current trends in Legal Tech and financing transactions
Legal Tech is currently on everyone's mind and has also become a central topic in the context of financing transactions. While marketable applications for buzzwords such as "automated document generation" or "artificial intelligence" are often still in their infancy in the field of legal transactional advice, such applications can already make a significant contribution to the success of a transaction in the field of efficient process management, e.g. in connection with the satisfaction of conditions precedents under loan agreements.
(Anti)Corruption, the Romanian Way
Romania has made international headlines in recent years with arguments and street protests generated by the controversial justice reforms that the government has tried to push through. Seen as a threat to the rule of law, the reforms and personnel changes in the criminal justice system were eventually dropped following a referendum held last year.
Royalty Financing: A New Source of Capital in Mining, Tech and Beyond
Royalty financing is a type of alternative finance where the financier, often called the royalty holder, advances a one-off up-front fixed cash amount to a company, a royalty payor, which in return promises to pay a percentage of its future revenues or profits to the royalty holder. This type of financing is used to develop an asset or a business when traditional debt or equity financing options are limited. It is a true alternative to traditional debt finance, since there is no fixed repayment plan and payments depend on the performance of the underlying business or asset. Also, unlike equity financing, the ownership and control in the royalty payor is not diluted, since it is not giving away its equity stake.
Not every corporate story ends with "happily ever after"
"Once upon a time" is a promising beginning for any story. Even for corporate ones. But statistics show that unhappy endings are all too common. In Romania, for every four new legal entities incorporated each year, one existing company is wound up.
Legal Finance in Practice
Legal finance – also called litigation funding – has firmly touched down in Central and Eastern Europe. Last year, we ran a chapter on what legal finance is. This year, we explain how legal finance works in practice. How we secure the best result for our clients. By working together.
Stay or go, your investments ARE Protected
You are an intra-EU investor. You run your business in one EU state and invest in another. Or perhaps you are an international company, outside the EU, but with a corporate structure that includes intra-EU investment. You never questioned that your foreign investment will be protected under the applicable intra-EU bilateral investment treaty (BIT). And you had no reason to.
New Arbitrability of Shareholder Resolutions in the Amended Polish Civil Procedures Code
Arbitration is on the rise in Poland. A major amendment to the Polish Civil Procedures Code became effective on 8 September 2019, increasing the list of arbitrable cases to include those on the invalidity or annulment of resolutions of general meetings of limited liability or joint-stock companies.
Unfair trade practices in the food retail sector in Hungary: Will the new UTP Directive bring substantial changes?
The legislation on unfair trade practices is a classic interplay between competition law and trade law. The close and complementary relationship between trade and competition policies can be derived from the similarity of their objectives: fostering fair and effective competition while at the same time protecting vulnerable market players from abusive conduct by those with stronger negotiating power.
Romania: Trends in competition and data protection investigations l Consumer welfare. Industry focus
Public enforcement is likely to become increasingly focused on consumer welfare. While this trend is obvious at the EU level, consumer welfare is still a rather blurry concept for national authorities, but clearly a focus for them as well.
cee overview - healthcare & life sciences
Austria: New unified cancellation right for Austrian insurance contracts brings legal certainty
Under Article 186 of the EU Solvency II Directive (2009/138/EC), EU Member States must grant life insurance policyholders a 14- to 30-day period to cancel their contract from the time when the policyholders were informed that the contract was concluded.
How fast can you get a trademark in Central & Eastern Europe?
When deciding to register a trademark, it is important to remember that the registration does not occur instantaneously. Since a registered trademark grants the holder an exclusive right to use it for the listed goods and/or services, providing the respective trademark office a certain amount of time to check the trademark is understandable.
The winner takes it all? - Enforcement of EUIPO cost decisions
Imagine you won. You were defending your trademark or design before the European Union Intellectual Property Office (EUIPO) and won an opposition or cancellation proceeding against another intellectual property right holder. Not only has the office decided on the merits in your favour, it also awarded you costs. How can you get that cost reimbursement if the losing party does not voluntarily pay?
The Digital Copyright Directive: Landmark or missed opportunity?
This April, the relevant EU institutions finalised the controversial Directive on Copyright in the Digital Single Market (the "Directive")1, which came into force on 7 June 2019. The draft of this legislation has been sitting on the EU's desk for several years and – unlike most other EU law – has also caught the attention of the general public. If you want to know why the Directive is likely relevant for you too, continue reading.
Redundancy/restructuring in CEE
When planning restructuring or redundancy measures, employers need to consider whether the intended measures qualify as a mass redundancy. To assess this, the timeframe of the redundancies, the number of employees to be made redundant and the total headcount needs to be considered. Though some procedural aspects of mass redundancies are harmonized in European law, local implementations and their interpretations may differ significantly. In the table which follows, we aim to summarize the triggers for a mass redundancy and certain procedural aspects of such process throughout CEE in an easily comprehensible format.
A power player hiding in the Hungarian construction industry: the construction trustee
To deal with the aftermath of the global financial crisis starting in 2008, Hungary introduced the unique institution of the "construction trustee", whose primary aim was to break the chain of debts among contractors and subcontractors in the construction sector.
Croatia's New Land Register Act
After years of criticism of the land register system, the Croatian parliament adopted a new Land Register Act aimed at creating a modern and completely electronic land registry system that provides legal certainty in the real estate business and protection of property and other real estate rights.
Pre-contractual liability for failure to conclude a contract
Sections 1728 and 1729 of the Civil Code expressly stipulate the obligation to compensate damage caused by negotiating a contract without the intention to conclude it and by terminating contractual negotiations without just cause. This article examines how the courts currently interpret these provisions.
Electromobility on the rise
As part of the EU's efforts to achieve carbon neutrality, Regulation (EU) 2019/631 of the European Parliament and of the Council of 17 April 2019 (effective from January 2020) laying down CO2 emission performance standards for new automobiles and new light commercial vehicles (the "Regulation") was issued. Under the Regulation, individual manufacturers (or associations of manufacturers under Article 6 of the Regulation) will be obliged, inter alia, to reduce emissions from new automobiles by 37.5 % by 2030 (compared to the 2021 target of 95 g CO2/km).
Together on the blockchain: Finding consensus in a decentralised network
An essential element of the blockchain and the technology behind it is the validation of transactions, i.e. confirmation that data in the blockchain ledger is entered rightfully1. But how, exactly, can data entered in a decentralised ledger be validated? Who does the validating? These questions arise once you look deeper into the workings and structure of transactions on the blockchain.
How to manage complex IT projects
Gone are the days when purchasing new software was mainly the job of procurement departments and driven by economic considerations. Nowadays, IT projects are incredibly complex and require the seamless interaction of many different stakeholders.
What is AI and why should lawyers care?
Artificial intelligence (AI) and machine learning are familiar buzzwords when it comes to future technology and fundamental societal shifts. But what is it really all about and why is it so difficult to apply common legal concepts to these developments?
A new reality for ridesharing apps in Poland
The battle between traditional taxi drivers as well as their supporters and those advocating a more digitalised approach focused on ridesharing applications such as Uber, Lyft or Bolt began a few years ago and is being waged in almost every country. In Poland, Uber started back in 2014 as the first mobile taxi application on the Polish market. Taxi drivers began protesting the app almost immediately after it became clear that consumers preferred Uber's efficiency and prices to those of traditional taxis. Criticism from traditional taxi drivers about the safety of Uber and the qualifications of its drivers led to the need for legal changes. A first draft amendment of the Polish Act on Road Transport was submitted to the Council of Ministers in July 2017 (the "Amendment").
Romania: How to start-up an army of cyber guardians
This year, Romania's first tech unicorn reached a USD 7bln valuation. This has stirred things up, expanding the horizons for many Romanian entrepreneurs. While still far from being a major start-up ecosystem, the country is showing its potential, mostly due to high-quality tech talent available at still manageable costs.
Austria: New Digital Services Tax
In September 2019, the Austrian parliament passed the new Digital Services Tax Act, which will enter into force on 1 January 2020. The main goal is to achieve "fair taxation" by taxing online advertising services provided in Austria. But in fact it is aimed at multinational tech companies.
Austria's implementation of the DAC 6-directive: The EU Reporting Act
Following the approval on 25 May 2018 of the European DAC 6-directive, which obligates taxpayers and tax intermediaries to report certain aggressive cross-border arrangements to the tax authorities, the Austrian parliament approved the EU Reporting Act (EU-Meldepflichtgesetz) on 20 September 2019, which implements the aforementioned directive into Austrian domestic law. This publication will highlight the most important takeaways and developments of this new act in comparison to the directive, which was already discussed in Roadmap 2018.
Throwback: Implementation of CFC rules in Austria
One of the Anti-Tax Avoidance Directive (ATAD) measures involves the reallocation of income of Controlled Foreign Companies (CFC) in low-tax jurisdictions to the parent company. The new Austrian CFC rules came into force on 1 January 2019. On 25 January 2019, the Austrian government published a Regulation on the application of these CFC rules. This article provides a practical overview of the Austrian CFC rules.
Monitor your trademarks – the Czech IP Office has stopped doing it for you!
Trademark owners need to be aware of the recent amendment to the Czech Trademarks Act, which implements EU Trademark Directive 2015/2436. The new amendment enables registration of trademarks that are identical to an earlier trademark. This will prove upsetting for careless trademark owners.
individually – together
Amending debt terms in CEE/SEE – one region, different regimes
Bulgaria: Welcome to Miami?
"My parents didn't want to move to Florida, but they turned sixty and that's the law," Jerry Seinfeld once said. Now imagine replacing Florida with Bulgaria! Sounds weird? Maybe, for now,...
... but there are a few reasons why this could start to sound logical: the aging of the European population, the good natural, climatic conditions, and the trends on the Bulgarian real estate market.
Telemedicine – A trend in the fast lane
The health care sector continues to see competition from traditional and non-traditional industry participants. At the same time, patients want continuously available, affordable and better health care and increasingly view medical treatment like any other (professional) service. Patients therefore are demanding cost-efficiency, high quality, ease of access and 24/7 availability.
A glimpse into the future...
Connectivity, algorithms, artificial intelligence… more and more digitalisation becomes part of our daily lives. What does this mean from a legal perspective - blessing or curse? Data protection expert Günther Leissler asks Univ Prof Dr. Nikolaus Forgó, Head of the Department of Innovation and Digitalisation in Law, University of Vienna, for his skilled view on the subject.
The fall of Agrokor - a partial history
Like any good crime novel, the fall of Agrokor had it all: the fallen hero turned villain, a looming public crisis, political intrigue and a packed storyline with many twists and turns. We have compiled a timeline with some of the most crucial events from this financial thriller.
The Interest Limitation Rule under the Anti-Tax Avoidance Directive
ATAD and BEPS:
In 2016, the European Union adopted the Anti-Tax Avoidance Directive ("ATAD") to combat "aggressive tax planning" as part of the Anti-Tax Avoidance Package. Article 4 of the ATAD includes an Interest Limitation Rule ("ILR") based on the recommendations set forth in Action 4 of the OECD's Base Erosion and Profit Shifting ("BEPS") project.
Cryptocurrency in Romania. A go or a no-go?
In Romania, authorities are yet to create the legal framework that would regulate the taxation of activities related to cryptocurrency. This legislative gap leaves plenty of room for tax avoidance, as even the most well-intentioned taxpayers lack the tools to understand what taxes they need to pay in relation to their cryptocurrency trading.
Tax intermediaries to disclose potentially aggressive tax arrangements to tax authorities
On 25 May 2018, the Council adopted a directive forcing tax intermediaries or taxpayers to report aggressive cross-border tax planning schemes to the tax authorities, which may exchange such information with other tax authorities within the EU. The Directive is to be implemented by 31 December 2019 and is applicable from 1 January 2020.
Comparison of the main features of non-compete agreements in CEE
Concluding non-compete agreements or including non-compete clauses in employment agreements is common practice in all jurisdictions in CEE. However, as these covenants are not subject to EU-wide regulations, the rules governing and the jurisprudence surrounding them differ in the various jurisdictions.
Cancellation of non-compete agreements – evolving court practice
Post-termination non-compete clauses are a common feature of employment contracts in Hungary. As the obligations prescribed by such clauses become effective only upon termination of employment, the parties' interests linked to the enforceability of the clauses may be completely different.
Start-up acquisitions & exits - where expectations meet reality
A typical start-up is usually founded by three or four individuals as a limited liability company or a joint stock company focused on IT or online businesses. As the start-up grows, a number of investors (ten or more) come on board (venture capital funds and angel investors) by acquiring convertible loan instruments, newly issued or existing shares. The start-up company is focused on building up and investing in its team of specialists, which is often its main asset. This explains why employee share option plans are so common. Gradually, the client network expands and the brand is established. And then, a strategic company comes along with a lucrative offer to acquire the start-up.
Legal hiccups in start-up financing
From pre-seed to exit, start-ups are chronically in need of money to ensure their steady growth. Due to lack of access to bank financing, start-ups are typically financed by their shareholders via equity finance or debt. But there are also hybrid instruments that can be used to bridge the gaps between financing rounds or to overcome valuation issues.
What industries do investors in start-ups currently prefer?
From pre-seed to exit, start-ups are chronically in need of money to ensure their steady growth. Due to lack of access to bank financing start-ups are typically financed by their shareholders via equity finance or debt. But there are also hybrid instruments that can be used to bridge the gaps between financing g rounds or to overcome valuation issues. We interviewed Ivaylo Gospodinov, one of the managing partners of the investment fund BlackPeak Capital.
Third-party funding in international arbitration
In recent years, third-party funding has seen a tremendous rise in popularity in investment arbitration and in international commercial arbitration alike. The numbers are constantly increasing: more third-party funders are active in the market, law firms are beginning to cooperate with third-party funders, and an increasing number of cases involve issues relating to third-party funding.
Statutory restrictions on investing in strategic sectors in Poland
The Act on Control of Certain Investments (the "Act") entered into force in October 2015, introducing restrictions on m&a transactions in Poland. The Act created an exception to EU freedom of capital movement, as it empowered the prime minister or minister of energy to object to transactions in which Polish companies operating in sectors deemed strategic for the national economy are involved.
How litigation financing works
As third-party funding continues to make headway, close cooperation between law firms and funders becomes ever more important. Schoenherr's Leon Kopecky and Victoria Pernt sat down with Philipp Leibfried of Burford Capital. With over USD 3 billion committed in the legal market, Burford is the best-capitalised provider of legal financing in the world.
Process funding in litigation – business with justice
Process funding has reached Europe and is on its way to becoming an integral part of national legal practice. Even more restrictive jurisdictions are seeing the advantages that process funding can offer, marking the start of a flourishing European legal market.
Disclosure obligations and conflict of interest
Third-party funding has become a common feature of international arbitration. Yet, despite the upsurge, it still raises many controversial legal questions. The most prominent is whether and to what extent the existence of third-party funding and the identity of the third-party funder must be disclosed to the other party, the arbitrators and the arbitral institution.
FDIs in Hungary - "sensitive industries" under scrutiny
In October 2018, the Hungarian Parliament accepted legislation with a rather ominous title. The "Act on Controlling Investments Detrimental to the Security Interests of Hungary" (the "Act") is illustrative of the government's protectionist approach. It seeks to establish further control over EU/EEA-external investments in Hungary. The Act enters into force on 1 January 2019 and introduces significant burdens for investors in industries considered "sensitive".
Mandatory registration of beneficial owners introduced for all Czech entities
As of 1 January 2018, all legal entities registered in the Czech commercial register must submit and register information about their beneficial owner(s) in the beneficial ownership register.
Compulsory disclosure of beneficial owners when doing business with a state in Slovakia
From early 2017, legal entities doing business with a state or holding specific licences have had to register information about their beneficial owner(s) in a publicly available registry.
Statutory secrecy obligations related to employee inventions in Austria and Romania
Secrecy plays a pivotal role in the area of patent law. The disclosure of an invention before a patent application has been filed can destroy novelty and therefore patentability, even if the disclosure is made without the inventor's consent. Accordingly, patent laws often provide specific rules on non-disclosure, in particular within the context of inventions made by employees.
This article provides an overview of these rules in Austrian and Romanian patent law.
Big Brother is watching you: Developments in employment law
The pervasive use of e-mail and the internet in the workplace has given rise to increased security issues, including data theft or misuse. But it has also given employers new ways to monitor employees, which leads to some interesting questions.
Disclosure in Austrian civil proceedings
Evidentiary proceedings are at the heart of all litigation and form the basis of any judgment. Sometimes the evidence is not in the possession of the party wishing to rely on it. In common law jurisdictions, parties may base their cases on their own documents as well as those in the possession of their opponent, and may force their opponents to produce all relevant documents in a pretrial discovery procedure.
Is trademark a celebrity's best friend?
Many celebrities are choosing to register their names as a trademark in order to prevent other people from exploiting it for profit (ie advertising products carrying their names). One could argue this basically means that they seek for privacy through trademark registration, which is rooted in the idea that everyone should have the right to be left alone and have control over the commercialisation of their persona, including celebrities, who have invested a lot of work in building their recognition in the world of fame.
There's no place like home until the neighbour interferes
Unfortunately, the Austrian Supreme Court ("OGH") doesn't think so. The Austrian Civil Code (ABGB) entitles property owners to prohibit all emissions that exceed the local norm and have a substantial effect on the customary use of their property.
Confidentiality in restructuring
Successful restructurings typically depend on a smooth and swift process. All information relevant for the restructuring must be available to the creditors, and must be kept confidential. In addition, legal duties of secrecy must be considered. Finally, the effective restructuring of a debtor's business needs to receive as little attention as possible from third parties (eg customers, the market, suppliers).
What I always wanted to ask a lawyer… "recording" (Austrian law perspective)
Bamboozled again! The good old handshake agreements of the old days apparently died. Next time I'll wear a wire and record everything to bust these people. But is this legal? Maybe I should ask my lawyer first…
A "private sphere" for entrepreneurs – are you ready for the new Trade Secrets Directive?
While companies generally do not have a right of privacy (at least under Austrian law), the protection of trade secrets has a somewhat similar objective: to grant leeway for development, which others must respect.
How to surprise the market: The secret trademark application
Plans to introduce a new product or service are often kept secret for a number of reasons. The later one's competitors become aware of an entirely new product or service, the longer one will enjoy the benefit of being the natural leader in that newly created market. In addition, famous companies in particular try to generate hype by creating an aura of mystery and focusing the public's attention on the big upcoming launch.
Commercial mediation – confidentiality matters
International commercial mediation has become increasingly important in international dispute resolution. Commercial contracts now regularly contain business-friendly mediation clauses and the number of cases is on the rise.
Romanian m&a on trial: Translation of international standards into local m&a transactions
Romanian private m&a has constantly sought to align itself to the international standards of transaction documentation, with some distinctions in terms of scope and interpretations of traditional m&a concepts still to be considered.
Criminal procedural law vs individual privacy / liberty
Privacy is a very delicate issue from the perspective of criminal (procedural) law. For their investigative activities, state authorities are granted various rights which interfere with the privacy of the individual.
Banking secrecy in CEE - one region, different rules
Do video cameras compromise privacy?
In an increasingly digitalised world, privacy is playing an ever more important role in property law. Thanks to security cameras, drones and other new technologies, each of us may be recorded or photographed without our knowledge. The jurisprudence has therefore had to address the question of whether installing video cameras or photographing neighbours or tenants in a residential complex infringes on their privacy.
Do our smart devices have the right to remain silent?
On 20 July 2017, a burglar sneaked into a family's flat in Hungary, grabbed whatever valuables he could find, and disappeared without a trace. At least that's what he thought. Unfortunately for the burglar, his crime was recorded by the family's baby monitor.
How to obtain formal design protection for your catwalk designs and still keep them secret
A so-called deferment of publication allows design owners seeking protection through registered Community designs to request that their registered design be published up to 30 months after the filing date.
Supervisory Board: Disclosure of conflicts of interest and confidential information
Prior to their election to the supervisory board of an Austrian stock corporation or, in case of a two-tier governance system, societas europaea candidates have to disclose to the shareholders their qualifications, profession and other functions as well as all circumstances that may create the appearance of a conflict of interest.
Poland: New Obligations for Employers Posting Employees to Poland
As of 18 June 2016, the new provisions on posting of employees in the framework of the provision of services contained in the Act of 10 June 2016 on the posting of employees in the framework of the provision of services (the “Act”) apply. The Act introduces a number of obligations, mostly for employers who post their employees to Poland.
Austria: Principal's Liability for Service Providers' Conduct
In daily business, companies often turn to the services of dependent or independent service providers. In fulfilling their duties, these service providers may encounter or even participate in conduct that infringes competition law. Principals must therefore ask whether and subject to what conditions the service provider’s conduct may be imputed to them and exposes them to liability for fines and damages. Two recent judgments may shed light on this critical issue.
Austria: Trademarks – The New Concept of Intervening Rights
With the EU trademark law reform, the possibilities to defend a later trademark against an earlier trademark have been significantly expanded due to the establishment of so-called intervening rights.
Austria: New Court Decisions on Banks' Own Funds Instruments
A bank suffering losses (and which may even be in the process of wind-down) may not be in a position to repay loss absorbing instruments in full, which it has issued in the past. Court decisions handed down in 2016 (one by the European Court of Justice and three by the Austrian Supreme Court) provide insight into questions of calculation of loss sharing, and how holders of certain loss absorbing instruments shall be treated in the event of a merger or demerger (which is often also a restructuring measure in the course of a wind-down)
Austria: The EU Capital Markets Union – What Lies Ahead
In the European Commission’s recently published Communication regarding the Capital Markets Union (“CMU”), it urges other institutions to accelerate completion of a true single market for capital across all EU Member States, and announces its work programme for 2017.
Czech Republic: New Developments in Corporate Criminal Liability
The Czech Act No. 418⁄2011 Coll. on the Criminal Liability of Corporations and Proceedings against Them (the “Act”) has been criticised for containing only the minimum requirements arising from the Czech Republic’s international commitments so far. The new amendment to the Act, effective from 1 December 2016 (the “Amendment”), will extend the range of criminal acts for which corporate entities may be criminally prosecuted, and also the possibilities to exclude their liability.
Austria: Convertible Loans for Austrian Start-Ups
A convertible loan is a popular investment means to finance a start-up. Austrian law, however, does not foresee convertible loans for the most popular corporate form of Austrian start-ups: limited liability companies. Convertible loans thus have to be synthetically structured.
Bulgaria: Legal Gap Puts Mortgage Creditors at Risk in Bulgaria
Fraudulent debtors are trying to use a disputable interpretation of Article 37, para 4 of the Special Pledges Act on the outcome of enforcement over a special pledge against the rights of secured mortgage creditors.
Slovakia: New Civil Procedure Regulation Entering into Force in 2016
On 21 May 2015, the National Council of the Slovak Republic adopted a new Act No. 160⁄2015 Coll. Civil Proceedings Code for Adversarial Proceedings (Civilný sporový poriadok) (“Code”). Together with Act No. 161⁄2015 Coll. Civil Proceedings Code for Non-adversarial Proceedings (Civilný mimosporový poriadok), and Act. No. 162⁄2015 Coll. Administrative Proceedings Code (Správny súdny poriadok), this represents the first comprehensive legal reform of Slovak procedural law in over 50 years.
Financial Assistance – Traps and Gaps in Bulgarian Law
According to Regulation No. 711 of 20 August 2014 of the Bulgarian Supreme Court of Cassation, the prohibition on financial assistance under Bulgarian law applies in more cases than explicitly provided for by the Bulgarian Commercial Act. Thus, case law reflects a broad interpretation of financial assistance and partly fills legislative gaps.
Stepping forward: Hungary Starts Dealing with Non-Performing Loans
The sale of NPLs has always been difficult in Hungary as purchasing of loan receivables is considered as lending activity; therefore, a prospective buyer is expected to have a valid Hungarian banking licence.
Austria: Bad Bank and Own Funds Instruments
What is the situation regarding own funds instruments issued by a bank, if such institution is converted into a wind-down company or becomes a bad bank? May investors who subscribed to instruments issued by a bank terminate those instruments (for good cause or due to changed circumstances) and request repayment? What happens with participation capital in the event of a reduction of share capital? In the aftermath of the financial crisis, the Austrian Supreme Court has answered some of these questions in recent decisions.
CEE: New Anti-Money Laundering Directive in the European Union
On May 20th 2015, after two years of negotiations, the European Parliament passed the fourth anti-money laundering directive, Directive no. 2015⁄849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing goals (“Directive”). The Directive ties the European regulatory framework more closely to established international standards, especially those recommended by the Financial Action Task Force1 (“FATF”) of 2012, in terms of enforcing stronger policies to combat money laundering and terrorism financing. European member states were required to implement its provisions into domestic law by 26 June 2017.
Czech Republic: Crowdfunding - Introduction to Regulatory Framework
Crowdfunding has become an increasingly popular method of financing in recent years. While this method of raising funds from the wider public creates a lot of new investment opportunities, there are also risks associated with it. EU financial market regulators are responding to the growth of crowdfunding and related risks in order to protect investors.
Czech Republic: Standard Terms and Conditions under the New Civil Code
Contracts commonly stipulate that a part of the contractual relationship is ruled by the standard terms and conditions. The new Czech Civil Code effective from 1 January 2014 (“Civil Code”) provides more detailed regulation in this respect and introduces some changes as well.
Poland: Commercial Proxy (Prokurent) Liable for Failing to Submit a Bankruptcy Motion – New Rules Coming into Play in 2016
The beginning of 2016 will bring about significant changes to the scope of liability of a commercial proxy (prokurent) for obligations of the company. What are the practical consequences?
Hungary: Protection of Employees' Personal Data in Light of the Introduction of Binding Corporate Rules
Can employees’ personal data be transferred freely within a company group? The importance of protecting personal data of employees has been and remains in the spotlight. Despite the fact that data protection has been regulated in Hungary since 1992, new developments such as the introduction of computer or web-based systems, closed-chain television systems, and GPS devices, as well as the extensive use of smartphones and other IT equipment make it necessary to revise and reinterpret those regulations.
No Time to Waste – New Waste Legislation in Slovakia
New Slovak waste management legislation affects virtually all levels of the waste management industry in Slovakia. This article provides basic information on the primary changes brought about by this new law.
Croatia: Participation of Foreign Bidders in Public Tenders in Croatia – How to Avoid Pitfalls
Although Croatia’s procurement market is now open to EU companies bidding for contracts in Croatia, foreign bidders still struggle to win public tenders in the country. What lessons can be learned from the mishaps of the past?
Austria: Imprudent Facebook Post May Lead to Dismissal
An employee was dismissed with immediate effect because he had published in-house information on his Facebook account. In the current decision on this case, the Austrian Supreme Court (“OGH”) confirmed that indiscrete Facebook posts may justify a dismissal (Decision by the Supreme Court, dated 27.11.2014, 9 ObA 111/14k).
Cooperation with the Competition Authority and Transactional Institutions in Hungary – Do they Work in Practice?
There are various legal instruments in Hungarian competition law similar to EU law, which provide for decreased fines on infringers of competition law in return for higher levels of cooperation with the Hungarian competition authority.
Polish Restructuring Law – Possibilities for Debtors and Creditors
Poland’s new restructuring law (ustawa z dnia 15 maja 2015 prawo restrukturyzacyjne, Dz.U. 2015 poz. 978) (“Restructuring Law”), effective 1 January 2016, brings many awaited changes for companies in distress and their creditors.
Bulgaria: Junk Food - To Tax or not to Tax?
In early 2015 the Bulgarian Ministry of Health (“Ministry”) announced its intention to follow the example of Denmark and to propose a tax on “unhealthy foods”. The aim is to limit the consumption of foods which increase the risk of chronic diseases such as obesity, heart disease, diabetes type two etc. The opinion of the National Centre for Public Health (“Opinion”) justified the Ministry’s idea that the high costs associated with widespread chronic diseases legitimise the imposition of fiscal measures. The intended taxes will affect four groups of foods which contribute to the increased risk of chronic diseases.
Border Protection Measures in Moldova
The adoption of border protection measures by the Moldovan authorities appears to be a big step forward, given the large volume of piracy and counterfeit goods that have plagued the Republic of Moldova since it has declared its independence.
Needs for Change in CEE National Laws to Comply with the Revised EU Trademark Directive
The EU trademark law reform brings several substantive and procedural changes for the national laws of EU member states. The table below sets out the needs for change in the Schoenherr EU jurisdictions.
Austria: What Cookies Teach Us about Design Protection
Imagine a fresh cookie with a crispy surface which is filled with delicious chocolate cream. Break it in half and watch the sweet cream ooze out of the cookie. What an appetising view, much like in the picture on the left perhaps?
Austria: Data Under Control
When it comes to determining who the data controller is for international data transfers, many national data protection authorities look no further than their own borders and do not consider foreign parent companies. But does this make sense? It may be time to reconsider!
Austria: New Rules for Real Estate Transfer Tax on Share Deals
The change in the Real Estate Transfer Tax in Share Deals (“RETT”) which entered into force on 1 January 2016 will enlarge the scope of the RETT to encompass share deals in partnerships and corporations where 95% of the shares are transferred or unified respectively. However, it remains possible to avoid RETT in share deals, but whether the costs connected with such avoidance schemes are worth the effort has to be considered.
Turkey: A New Capital Market Instrument: Real Estate Investment Funds in Turkey
By the enactment of the Communiqué on Real Estate Investment Funds (“REIFs”) III-52.3 (Gayrimenkul Yatırım Fonlarına İlişkin Esaslar Tebliği), published in the Official Gazette numbered 28871 and dated 3 February 2014, Real Estate Investment Funds were introduced into Turkish law. The Communiqué, which entered into force on 01 July 2014, regulates the establishment and operations of REIFs. Since its enactment, more than 50 applications to establish REIFs have been made to the Capital Market Board (“CMB”).
Slovenia: Food Supply Chain - The Limits of Competition Law and the Regulation of Unfair Trading Practices
Romania: What do Companies Risk when Dismissing their Managers?
Under the Romanian Companies Act, mandate agreements governing the relations between companies and their managers are essentially revocable. In recent cases, the courts have taken a position against early termination, awarding damages to managers.
Romania: Hardship Clauses for Hard Times
In the context of the global economic crisis, contract law and contract drafting has increasingly considered unexpected events that dramatically change the landscape of a contract, rendering performance impossible or excessively onerous for the parties.
LBO/MBO Structures Tested by Austrian Courts
Financial assistance rules play a role in particular in the context of acquisition financing transactions, leveraged transactions, group financings and cash pooling arrangements within groups of companies. A 2013 ruling by the Austrian Supreme Court on unlawful leveraged buy-out (LBO) structures will impact transaction structuring as to down-stream or upstream mergers following M&A transactions.
Bulgaria: Is This Chicken That I Have, Or Is This Fish?*
In 2003 Ms. Simpson, confused by a food label, dropped this line in a TV-show and immediately landed in the "dumb blonde" stereotype. Ten years later, Bulgarian consumers face the same confusion, wondering, "Is this chicken, or is this … water"?
Recognition of a Mark as Well-Known in Moldova: Practical Aspects
In Moldova a mark is considered well-known if it is largely known at the date of filing of an application to register a mark or at the date of the priority claimed, in relation to a relevant scope of persons and with regard to the goods and/or services for which such mark is used.
Bulgarian Update: The Quest for the Lost Forest
On 5 September 2014, the European Commission concluded that state forest swaps executed in the early years of Bulgarian EU membership violate the EU state aid rules and required that Bulgaria undertake measures to remedy the issue.
New Land Transfer Tax System in Austria: Ups and Downs
The Austrian Constitutional Court has declared the old system of the land transfer tax as contradicting the constitution because the differentiation of the assessment basis being basically the consideration and, in certain transactions where no consideration was given, the taxable value (which is only ca one-tenth of the actual value) is not justifiable. The Parliament has introduced a new law from 1 June 2014 that still uses the taxable value as the basis, but only in transactions with the close family or corporate restructurings (eg, mergers, de-mergers) and in all other transactions, the consideration or the actual value.
Czech Republic: Acquisition of Real Estate from Non-Owners
On 1 January 2015, new regulations of the Civil Code will become fully effective under which a third person will, under certain statutory conditions, be allowed to acquire ownership to real estate from a non-owner. The real owner will, however, have certain limited tools to protect his ownership right against such a third person.
Croatia: Real Estate Agencies – What is the Client Actually Paying For?
The main purpose of real estate agencies is to help sell, buy or lease adequate property in a professional and reliable way and thus save their clients time and money. But is this always the case? According to certain statistics, in Croatia there are currently around 1,279 real estate agencies registered, of which around 100 are active.
Challenges and opportunities of e-Procurement
Public procurement law as practiced during the last decades has become an obsolescent model. “End-to-end e‑procurement” introduces a complete new era of public procurement, providing significant opportunities and challenges for all parties involved.
The EU Offshore Safety Directive: Implications for Offshore Business in the Adriatic Sea
The Croatian government expects that, with upcoming offshore oil and gas operations in the Adriatic Sea, “Croatia might become a small regional energy giant”. But serious concerns about the implications of offshore drilling for Croatia’s coastal and marine environment are a strong focus of the public and the environmental NGOs. The transposition of the new EU Offshore Safety Directive into national law should provide a more stringent regulatory framework for offshore safety and environmental management in the upstream sector.
Environmental Impact Assessment for Fracking Projects: European and Austrian Perspectives
The exploitation of shale gas by hydraulic fracturing is controversial. Even though the European Council has opposed a mandatory environmental impact assessment for fracking projects, Austria is taking a critical view towards shale gas exploitation.
Natural Gas Market Legislation in Turkey
With its developing economy and strategic location, Turkey is attractive for both national and foreign investors in natural gas markets. As a corridor and transit line between the major natural gas providing countries, Turkey attracts the attention of reputable natural gas market participants. Its natural gas market is mainly regulated under laws and regulations that accord with EU legislation.
I'm a Legal Alien, I'm a Legal Alien: Extraditing Foreign Citizens from Austria
How do EU citizens living in Austria quickly become “foreigners” when it comes to extradition requests from third countries; for example, in relation to US corruption or antitrust charges?
Seeking Fair Value: Changes to the Polish Mandatory Takeover Rules
After almost a decade with the current rules on takeovers, a proposal for changes to the system is well advanced. The author looks at the main changes concerning mandatory bids and pricing, and what they mean for the M&A market and investors.
Content of the Memorandum of Association after Re-Codification
The article summarises his experience with amendments of memorandums of association of limited liability companies as the most common form for conducting business in the Czech Republic – since the entry into force of new legal regulation of Czech private law on 1 January 2014.
The Nature of the SPA under Bulgarian Law: Endorsement of Registered Shares an Obligation under the SPA
Share sale and purchase agreements were considered to qualify under Bulgarian law as “preliminary agreements” for the future transfer of shares. According to the Bulgarian High Court decision of 16 January 2014, however, the sale of registered shares may not be subject to a preliminary agreement. The SPA that governs the share sale is a final agreement.
Croatia: Are Changes to the Labour Law Aimed at Labour Market Flexibility?
Although accompanied by a strong opposition from both unions and employers, the new Croatian Labour Act entered into force on 7 August 2014. It is directed mostly towards encouraging atypical employment forms, improving working time flexibility and making the procedures for lay-offs less complicated.
Austrian Act Against Wage and Social Dumping – A Sleeping Giant Awake
The Austrian Act Against Wage and Social Dumping introduced high penalties, particularly if the employer does not pay the employee’s remuneration as stipulated in collective bargaining agreements. The provisions of the LSDB‑G are becoming subject to more frequent controls of the Austrian authorities who penalise any infringement rather rigorously.
Poland: Redundancy Selection Criteria – Dismissal of Employees Based on Grounds Connected to the Employer
If the employer intends to terminate an employment agreement for reasons not attributable to the employee, it must apply the selection criteria for dismissal and indicate them in its declaration of will regarding termination of employment.
Decision of the Hungarian Constitutional Court on the Protection of Pregnant Women against Termination
Since June 2014 pregnant women are protected against termination of employment even if, when the termination notice is served, they do not even have knowledge of their pregnancy.
Latest Developments in EU Competition Law
EU Competition law has seen a year with landmark developments on the legislative and judicial level, which will lead the way for competition law enforcements in the years to come. The developments span from a new directive on damages, a new facet in the debate on abusive rebates, a proposal to broaden the scope for merger control and, lastly, a new Competition Commissioner.
Settlements with the Austrian Competition Authorities: Outlook
In its recently published guidelines, the Austrian Federal Competition Authority (FCA) outlines the regulatory framework for settlements in antitrust proceedings – a procedural instrument that is becoming more and more attractive in Austria. But do the guidelines provide sufficient incentives for companies to pursue settlements as an “early exit” route, and what are the benefits and pitfalls of such process?
Slovakia: Grid Tariff or Solar Tax?
A support scheme for renewable energy projects in Slovakia is generally guaranteed for 15 years. But from January 2014, a new special fee was introduced, which lowers the main feature of this support – the feed-in tariff.
When the public prosecutor comes knocking, does your communication with your attorney remain privileged?
In a recent statement, Austria’s public prosecution authority expressed its opinion on the legitimacy of accessing the correspondence between attorneys and their clients.
Austrian Update: New Foreign Investment Approval Requirement Regime as revised in 2013
Under a 2011 amendment to the Foreign Trade Act (FTA), as revised in March 2013, acquisitions of 25% or of controlling interests in companies in specific industries, including in telecoms and energy, by non-EEA and non-Swiss persons require approval by Austria’s Minister of Economic Affairs
Duties and Liabilities of Management Board (MB) and Supervisory Board (SB) in Corporate Reorganizations
Corporate reorganizations are very common in corporate practice. The liability risks borne by MB and SB members in the context of corporate reorganisations should not be underestimated.
Poland: Limitations of Directors’ Rights to Represent a Company – Practical Solutions
Limiting the director’s (management board member’s) right of individual representation is one way to secure the company against unauthorised actions on its behalf. How to do this properly?
Acting in Concert – ESMA strengthens shareholder activism
In November 2013 ESMA published a statement on shareholder cooperation and acting in concert under the Takeover Bids Directive, including a White List of activities under which shareholders shall not be deemed as concert parties.
Suspending the Activity of a Moldovan Limited Liability Company: Is it Worth it?
Why should one know about suspending the activity of a Moldovan limited liability company (LLC)? What are the steps to be followed? What are the pros and cons?
Generally, apart from dissolution (liquidation), an LLC can temporary suspend its activity for a period that may not exceed three years as of state registration of suspension. Starting with the date of state registration of suspension, an LLC is not required to submit any reports with the Moldovan authorities or pay any taxes.
Czech Republic: Acting on behalf of a company after the re-codification
The re-codification of Czech private law, which entered into force on 1 January 2014, has introduced many changes to the institute of acting on behalf of a company. Doing this correctly is one of the prerequisites for the proper formation of legal relationships. For the purposes of this article, a company means a limited liability company or a joint-stock company.
Austria: M&A Technology Transactions
Technology is intangible, in particular for M&A lawyers making technology deals from their desks, far away from the asset. Intangible assets are generally hard to grasp and may raise certain issues during a transaction. This article highlights some of the typical issues in M&A technology transactions and suggests solutions to tackle/avoid them.
Croatia: Freedom of Movement of Workers after Croatia's Accession to the EU
Free movement of workers is one of four economic freedoms of EU citizens. Although in principle as of 1 July 2013 Croatian workers are entitled to move freely and stay in other member states for work, limitations imposed by certain member states exist.
Transfer of Employees in Moldova in Case of Business Transfers: Pitfalls
Moldovan legislation provides for two possibilities of business transfer: (i) share deal and (ii) asset deal by means of a sale purchase agreement having as object an enterprise as a sole asset complex (complex patrimonial unic; ESAC). While in the first case no major labour issues arise (mainly given that the employer remains unchanged), when using the second option the involved parties must take into consideration a series of legal aspects to avoid commonly committed mistakes.
More regulation ahead of us in merger control?
During the summer of 2013, the European Commission initiated a public debate whether the scope of the EU Merger Regulation should be broadened to cover the acquisition of non-controlling minority shareholdings. What can we expect?
Czech Republic: Insolvency filings in case law
The case law sets very high requirements for insolvency filings made by creditors. Creditors must pay extra attention, as the consequence of an insolvency filing is that other creditors and debtors may claim damages that occurred in connection with an insolvency filing that was refused for its incompleteness or other deficiencies.
New Principles for the Assessment of Genuine Use of Community Trademarks
The CJEU decision in the case Leno Merken1 leads to legal uncertainty concerning the territorial extent to which a Community Trademark must be used in order to avoid vulnerability due to lack of use.
Consequences of Croatia’s Accession to the EU for National and Community Trademarks
Trademark right is a form of monopoly; it guarantees its proprietor exclusive rights on market. With Croatia’s accession to the EU on 1 July 2013, the advantages of an open market unfolded, which resulted also in easier trademark protection on both the national and European market via Community trademarks.
BYOD and data protection – incompatible or manageable?
Employers increasingly want to introduce BYOD to their companies. They typically expect three key effects from allowing BYOD: (i) cost efficiency, (ii) cost efficiency, and (iii) cost efficiency. However, BYOD means that a company must allow private devices to get linked to its data and databases. In other words: BYOD raises serious data protection concerns.
Croatian Government on a Mission to (Re)attract Real Estate Investments
Due to the continuing decline in investments and development on the Croatian real estate market, the Croatian government decided to introduce a number of remedying measures, some of which are summarised here.
Energy Capacity Markets
The EU Commission and the Agency for the Cooperation of Energy Regulators are looking at options on how best to reward generation adequacy and flexibility in the power markets given the challenges brought by the European policy of moving towards a low carbon society.
New approaches for the procurement of R&D, innovative products & services
The proposals for Public Procurement Directives are expected to increase the uptake of PPI by providing several instruments allowing the strategic use of public procurement to spur innovation.
LIBE Committee’s Vote: EU Data Protection Regulation Takes Second Base
The EU Data Protection Regulation is in its second round. Having been rejected by the European Parliament earlier this year, Viviane Reding’s ambition of replacing the member states’ data protection laws by one single EU wide regulation has arrived at second base.
Czech Republic: New Ways of Cross-Border Transfer of Company Seat
On 1 January 2012, the Amendment to the Act on Transformations (the AT Amendment) came into force. In addition to major changes related to all types of transformations, the AT Amendment also introduced seat transfer within the EU out of and into the Czech Republic. Notwithstanding certain application challenges, companies are already using the new way of cross-border transfer of seat.
The ECJ Power Punch to Hungarian VAT Practice
Hungarian taxpayers had faced uncertainty since 2003, when Hungary introduced the principle of “due foresight” into its VAT regime. This principle had been the main weapon of the Hungarian tax authority (NAV) against taxpayers trying to abuse VAT deduction rights. The NAV also abused this weapon, but has now been disarmed.
Disbursing Dividends to Foreign Shareholders from Moldovan Limited Liability Companies: Practical Considerations
Statistically, as of 1 September 2012, the Moldovan trade register reflects information on over 162,000 registered entrepreneurs. Approximately 49% are limited liability companies (LLC). By 1 January 2012, the number of companies with foreign capital incorporated in Moldova exceeded 81001, most being limited liability companies. This article looks at what LLC management and shareholders must consider when deciding on dividends.
Poland: New Formalities When Selling Shares
The latest Supreme Court’s (SC) judgment increased the number of formalities when selling shares in LLCs. According to the judgement, it may be necessary to put original share purchase agreements on registry files. Given this, parties to transactions are trying to find ways to keep sensitive terms of share purchase agreements confidential.
Romania: Can Officers and Managers Risk Personal Liability for their Company’s Debts?
A general separation of liability exists between companies and management in respect of corporate debts. This legal separation may be pierced in cases of insolvency or outstanding tax liabilities where officers or managers have intentionally contributed to such circumstances.
Hungary: New Forms of Employment
Flexibility is one of the keywords of the new Hungarian Labour Code, which entered into force on 1 July 2012. The new legislation contains novel types of employment, enabling employers to hire employees in Hungary in a more flexible structure.
Ahead of Croatia's EU Accession – a Snapshot of Competition Law Enforcement and Anticipated Changes
Croatia’s EU accession is imminent. What will it bring for competition law enforcement in Croatia? What legislative loopholes must still be bridged? This article gives an overview of noteworthy amendments expected in the next months.
Actions for Damages for Breaches of Antitrust Law – The Road Ahead
The private enforcement of competition rules, in particular through damages actions, is one of the major trends in the application of European antitrust law. The following essay reports on the European Commission’s initiatives in this field and puts them into the perspective of national developments in Austria.
Restructuring Trusts – A More Efficient Way to Recover Debt?
In times of financial difficult and a challenging market environment, establishing a restructuring trust provides an insolvency-proof structure that meets the demand of the financing banks for an immediate change of control in the company while ensuring a professional M&A process with an upside for all stakeholders.
Moldova: Unauthorised Use of Objects of Intellectual Property under the New Competition Act
As of 14 September 2012, Moldova has new competition legislation. The Competition Act No. 183⁄2012 (Competition Act) transposes the EU competition acquis and introduces supplementary rules on the unauthorised use of objects of intellectual property (Unauthorised Use of OIP). Under the Competition Act, the Unauthorised Use of OIP is to be treated as practice of unfair competition.
Two Years of Trademark Opposition Procedures in Austria
More than two years after the introduction of trademark opposition procedures in Austria, uncertainties remain about various aspects to be considered by trademark owners. Finding the right strategy on how to challenge younger trademarks is important.
Austria: New Disclosure Requirements for Shareholdings in Listed Companies – Five Things Investors Should Know
The Austrian Stock Exchange Act (Börsegesetz; BoerseG) has recently been amended to significantly extend disclosure obligations for shareholdings in listed companies. The main objective is to capture arrangements, in particular derivatives, which previously escaped major shareholding disclosure rules, even though they could – and were – used for stake building purposes in Austrian listed companies. The changes are effective from 1 January 2013 and are expected to create challenges for investors, fund managers, credit institutions and securities firms.
State Aid Schemes and EU Funds – Instruments for Financing Projects in Romania
Over the past years, banks operating in the Romanian market have been approached with an increasing number of financing projects that aim to benefit from financial support from either state aid schemes or EU financing programmes.
The Montenegrin Financial Collaterals Act: Carving Out a New System for Banks and Financial Institutions
The Montenegrin Parliament enacted the Financial Collaterals Act (FCA) in July 2012, as part of the EU integration process. The FCA was drafted using the EU Directive 2002/47/EC of 6 June 2002 on Financial Collateral arrangements (Directive) as its basis. Its greatest contribution is providing a high-quality legal basis for establishing and realising collateral more easily – which also contributes to the stability of the financial system in Montenegro.
New Capital Requirements for European Banks – Grandfathering for Existing Equity Instruments
As recent developments have shown, it is highly unlikely that the EU Capital Requirements Regulation (CRR) on credit institutions and investment firms, which aims to put in place a comprehensive and risk-oriented regulatory framework throughout the EU, will enter into force on 1 January 2013 in the whole European Union (even though some EU Member States would be ready to implement Basel III as at 1 January 2013). Still, the implementation of Basel III is imminent. The goal is a sounder and safer European financial system. As the global financial crisis revealed the shortcomings of the current regulatory environment as to the prudent operation of the European credit institutions, the CRR envisages stricter rules for institutions’ own funds, liquidity and leverage.
Czech Republic: Criminal liability of companies for money laundering by negligence
The Czech Republic’s Anti Money Laundering Act (AML) is not new. But it is still neglected and underestimated, even by big companies. This stance is connected to companies’ general unawareness of being a bearer of legal obligations, and to their mistaken belief that if they do not launder the money deliberately, they cannot be sanctioned. However, under the new Act on Criminal Liability of Legal Entities (ACLLE), the crime of money laundering can easily be committed without anyone in the company noticing.
Austria: Demergers – Creditors’ Right to Securing
In the course of the 2011 Company Law Amendment Act (Gesellschaftsrechts-Änderungsgesetz 2011; GesRÄG 2011)1, the securing regime for demergers has been amended so that creditors now have a legally enforceable right to securing if satisfaction of their claims is at risk.
Reselling Used Apps?
In a recent decision, the Court of Justice of the European Union (CJEU) held that the resale of used software generally cannot be excluded in licence terms. The judgment, which aimed at the resale of used business software, may also affect the app market.
Austria: The New Real Estate Income Tax - Yet Another Tax to Pay
The Austrian Stability Act 2012 (Stabilitätsgesetz 2012) made the private sale of real estate income tax dutiable as of 1 April 2012 irrespective of any speculation period (Spekulationsfrist). The tax system was thereby aligned with the new capital gains tax which equally became effective as of 1 April 2012. By paying 25% of special tax (capital gains tax respectively real estate income tax) both types of income are finally taxed (Endbesteuerung).
Croatia: Easier Legalisation for Buildings Built without a Permit
The strict 2011 legislation on legalisation of buildings built without a permit was amended in 20121. The aim was to enlarge the number of legalisation requests and to simplify, economise and expedite the legalisation of an estimated 90% of all buildings in Croatia.
Czech Republic: Significant Changes in Real Estate Law under the New Civil Code
In May 2012, the New Czech Civil Code was published in the legal code collection (New Civil Code). After almost 50 years, the current Civil Code will be replaced by the New Civil Code starting 1 January 2014, which changes the civil law entirely. The New Civil Code will also substantially amend and change the real estate law.
Slovakia: Public Participation in Environmental Impact Assessment Procedures – a Blessing and a Curse?
The Environmental Impact Assessment (EIA) is an important instrument to balance the diverging interests of two of the decades’ most pressing concerns – the protection of the environment and the growth of the economy. Over the years, public participation has become one of the most effective advocates for the environment.
Challenges to the Mining Law Reform in Croatia
The main purpose of the current Croatian Mining Act (Zakon o rudarstvu), in force since 30 July 2009, was to introduce the new licencing and concession regime suitable to exploration and production of mineral resources in line with EU law. But its implementation has proven ineffective and controversial. The amendments made to the Mining Act in April 2011 were incomplete and legal uncertainty continues. Now, in the context of Croatian accession to the EU on 1 July 2013, the pending mining law reform is expected to address comprehensively the many problems of the mining industry in Croatia.