CEE Legal Matters

Category: Austria

  • Schoenherr Advises Thales Group on Acquisition of Steyr Motors

    Schoenherr Advises Thales Group on Acquisition of Steyr Motors

    Schoenherr has advised France’s Thales Group on its July 24, 2019 acquisition of insolvent motor manufacturer Steyr Motors GmbH. Grassner Lenz Thewanger & Partner reportedly advised the unnamed seller on the deal, which remains subject to the approval of the Austrian Federal Competition Authority.

    The Euronext Paris-listed Thales Group designs and builds electrical systems and provides services for the aerospace, defense, transportation, and security markets. The company is headquartered in Paris and operates in 68 countries. 

    Austria’s Steyr Motors specializes in the production of diesel engines. It was part of Steyr Daimler Puch and Magna before it was made independent by a group of investors in 2001.

    The Schoenherr team was co-led by Partners Wolfgang Holler and Miriam Simsa and included Partners Franz Urlesberger, Michael Woller, Guido Kucsko, and Bernd Rajal, Counsel Ayla Ilicali, Attorneys-at-Law Dominik Hofmarcher and Marco Thorbauer, and Associates Philipp Wetter, Philipp Kalser, Nina Zafoschnig, and Karin Pusch.

  • Georg Eisenberger to Leave Eisenberger & Herzog to Launch Public Law Boutique

    Georg Eisenberger to Leave Eisenberger & Herzog to Launch Public Law Boutique

    Eisenberger & Herzog has announced that Senior Partner Georg Eisenberger will leave the Austrian firm on June 30, 2020, after twenty-five years of partnership, to establish a boutique law firm for administrative, constitutional, and European law, specializing in public commercial law and unique legal cases. In addition to its headquarters in Graz, the firm will also have an office in Brussels.

    “Moving forward, I aim to prioritize my work on managing a select group of distinct public commercial law clients through a boutique practice, and on my professorial lecturing and research activities at the university,” commented Eisenberger, who heads the firm’s Public Law practice group in a statement on the firm’s website. “I am proud to look back on my work contributing to E&H’s development and prosperity, but now I plan to dedicate my efforts to a new concentration within the legal profession. I am happy to leave E&H in good hands, and will continue to follow the progress of their exceptional success story with great interest.”

    E&H Partners Ulrike Sehrschon and Tatjana Dworak will assume the leadership of E&H’s Public Law team.

    “We would like to thank Georg for his 25 years of commitment to the rise of E&H,” said Alric Ofenheimer, the head of E&H’s Graz office. “From the very beginning, he was a strategist who played a key role in the growth and success of our firm. We will always remain closely associated with Georg Eisenberger and will continue to enjoy working with him.”

    According to Eisenberger, the firm “will change its name within an agreed-upon time frame.”

  • Regulated Industries and Non-Exhaustion of IP Rights in the Course of Parallel Trade

    In a recent case involving parallel-imported agrochemical products, the District Court of The Hague ruled that non-compliance with the requirements laid down by the European Court of Justice (CJEU) for parallel import of relabelled products displaying the original right-holder’s trademark constitutes trademark infringement, particularly if the right-holder is not properly notified of the parallel import and is not offered a sample of the relabelled product on request. This decision shows that the requirements for parallel import are applied strictly by the courts and have a broad scope (not limited to pharmaceutical products), allowing the mark-holder to exercise control over the resale, re-labelling, and re-packaging of its original products within the EU.

    Background

    Under Article 15 of Regulation 2017/1001 and Article 15 of Directive 2015/2436, a trademark owner cannot oppose the use of its trademark by third parties for goods that were put on the EU market either by the trademark owner or with its consent. Consequently, a parallel importer can purchase the (original) goods of the trademark owner in one EU member state and resell them in another EU member state. The rights of the trademark owner are considered “exhausted.” However, the trademark owner can oppose this use of its trademark and parallel import, provided there are “legitimate reasons” for doing so. This is particularly the case where the condition of the goods is changed or impaired.

    The Judgement

    In the particular case described above, the defendant company sold agricultural fungicides which had been previously imported from another European country. The company had been granted a parallel permit for the product but relabelled it because of the different language and regulatory requirements. The products nevertheless still contained various trademarks from the trademark owner’s company after re-labelling. The defendant company did not notify the trademark owner prior to the import though, and despite several warning letters, denied any obligation to notify and to send a sample of the relabelled product upon request. The defendant company claimed that the trademark owner’s company had sufficient knowledge of the imports and the CJEU’s repackaging conditions applied only to pharmaceuticals.

    In its judgement, the District Court of The Hague rejected the claim that the CJEU’s repacking conditions and related EU case law applied exclusively to pharmaceutical products. As both pharmaceutical and plant protection products are in a very sensitive area of products – one in which the public is extremely demanding with respect to quality and integrity – the Court held that the CJEU’s repacking conditions apply to both product categories. In addition, the District Court held that because both kinds of products can be potentially harmful, the applicable use instructions, dosages, and warnings on and in the packaging are of major importance. The District Court also stated that the specific subject-matter of a mark is to guarantee the origin of the product bearing that mark, and that relabelling products simply as repackaging by a third party without the authorization of the proprietor is likely to create real risks for that guarantee. 

    Conclusion

    While parallel imports normally are covered by the principle of “free movements of goods,” The Hague District Court made it clear that the continuous use of the original right-holder’s trademark imposes certain obligations on the parallel importer in the context of re-packaged/relabelled agrochemicals, hereby following the principles set up by the CJEU indicated above. The court pointed out that all CJEU repackaging conditions have to be met, namely a prior notification to the right holder, the provision of a sample of the relabelled product upon request, no defective, poor-quality, or untidy re-labelling (or re-packaging), and no (negative) effect of the re-packing and/or re-labelling on the original condition of the product. Following this case, a trademark owner can also take proper action against parallel imports for plant protection products which do not comply with the CJEU repackaging conditions. At the same time, parallel importers who aim to comply with these conditions should have and will have no issues with the trademark owner. 

    By Egon Engin-Deniz, Partner, CMS Vienna, Rogier de Vrey, Partner, CMS Amsterdam, Filip de Corte, Head of IP Crop Protection, Syngenta, and Joachim Hofmann, Senior Trademark Lawyer, Syngenta

    This Article was originally published in Issue 6.5 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • Wolf Theiss and SCWP Advise on Miba Acquisition of Stake in Voltlabor

    Wolf Theiss and SCWP Advise on Miba Acquisition of Stake in Voltlabor

    Wolf Theiss Vienna has advised Miba AG on its acquisition of a 25.1% stake in Voltlabor GmbH from Montenor GmbH and on its establishment of a joint venture to develop battery systems for mobile applications. SCWP Schindhelm advised Montenor on the sale.

    The acquisition was implemented through Miba’s subsidiary, Miba eMobility GmbH.

    Miba AG is a global family-run industrial and technology group and partner of the automotive industry. According to Wolf Theiss, Voltlabor, based in Bad Leonfelden, Austria, “specializes in the research, development, and production of innovative battery systems.”

    The Wolf Theiss team was led by Partner Andrea Gritsch and Senior Associate Zeno Grabmayr and included Partners Sarah Wared, Gunter Bauer, Roland Marko, and Karl Binder, and Senior Associate Florian Pechhacker.

    The SCWP team consisted of Partner Franz Mittendorfer, Lawyers Maria Praher and Sebastian Hutter, and Associates Karoline Mokesch, Elisabeth Forstner, Anna Rechberger, Clemens Stieger, and Julia Mandl, and Junior Associate Dina Ott.

  • CMS Advises ADX Energy on Acquisition of Austrian Oilfields

    CMS Advises ADX Energy on Acquisition of Austrian Oilfields

    CMS has advised Australian crude oil explorer ADX on its acquisition of the Zistersdorf & Gaiselberg oilfields in Austria from Austrian exploration and production company RAG. Fellner Wratzfeld Partner reportedly advised RAG on the deal.

    The deal is expected to close by the end of 2019. As a result, ADX will have an extraction rate of 350 barrels of oil equivalent per day.

    The CMS team was led by Partner Johannes Trenkwalder and included Partners Sibylle Novak, Robert Keisler, and Jens Winter, Attorneys-at-law Mariella Kapoun and Mario Maier, Dominik Stella, and Associates Sanela Furstenberg and David Kohl.

  • Wolf Theiss Advises Asfinag on EUR 600 Million Bond

    Wolf Theiss Advises Asfinag on EUR 600 Million Bond

    Wolf Theiss has advised Asfinag Motorways and Freeways Financing on its issue of EUR 600 million 0.1% bonds due 2029 guaranteed by the Republic of Austria. The Frankfurt office of Linklaters reportedly advised the joint lead managers Credit Agricole Corporate and Investment Bank, Goldman Sachs International, J.P. Morgan Securities plc, and UniCredit Bank Austria AG, as well as co-lead managers Erste Group Bank AG and Raiffeisen Bank International AG.

    The EUR 600 million bond was issued under Asfinag’s EUR 12 billion Guaranteed Euro Medium Term Note Program, which started on July 9, 2019. 

    The Wolf Theiss team was led by Partner Alexander Haas, supported by Partner Kurt Retter and Niklas Schmidt, Counsel Eva Stadler, Associate Sebastian Prakljacic, and Legal intern Thomas Helige.

  • Freshfields’ Vienna Advising Volkswagen on Proposed Co-Investment in Argo AI

    Freshfields’ Vienna Advising Volkswagen on Proposed Co-Investment in Argo AI

    Freshfields’ Vienna-based IP/IT Partner Bertram Burtscher is part of the firm’s global team advising Volkswagen AG as IP/IT, Antitrust and CFIUS counsel on its proposed USD 2.6 billion co-investment in the autonomous vehicle technology company Argo AI with the Ford Motor Co.

    According to Freshfields, “the transaction contemplates a capital infusion into Argo AI by VW and the merger of VW’s own Autonomous Intelligent Driving into Argo AI.”

    Burtscher co-led the Freshfields’ team with New York-based Partner Menachem Kaplan and Associate Marissa Yu, Dusseldorf-based Partner Martin Klusmann, Berlin-based Principal Associate Miriam Geiss and Associate Ilka Mauelshagen, and Washington D.C.-based Partner Aimen Mir.

  • DLA Piper Advises VelaLabs on Acquisition of Laboratorium fur Betriebshygiene

    DLA Piper Advises VelaLabs on Acquisition of Laboratorium fur Betriebshygiene

    DLA Piper has advised pharmaceutical laboratory VelaLabs Austria, a subsidiary of the Tentamus Group, on its acquisition of Vienna-based Laboratorium fur Betriebshygiene GmbH from unidentified private individuals.

    As part of the transaction, VelaLabs acquired all shares in LABH. 

    Tentamus Group offers services in physical chemistry, instrumental analysis, micro and molecular biology. The company has over 60 laboratories worldwide. 

    Laboratorium fur Betriebshygiene was founded in 2003 and provides microbiological services such as sterility tests, microbiological methods, and specific environmental controls such as germ identification.

    The DLA Piper team was led by Partner Jasna Zwitter-Tehovnik, supported by Associate Kevin Luiki.

    DLA Piper could not provide further information on the deal.

  • Weber & Co. Advises on Addiko Bank IPO in Vienna

    Weber & Co. Advises on Addiko Bank IPO in Vienna

    Weber & Co. and Skadden, Arps, Slate, Meagher & Flom have advised joint global coordinators Citigroup Global Markets Limited and Goldman Sachs International and book-runners Erste Group Bank AG, Keefe, Bruyette & Woods, and Raiffeisen Centrobank AG on Addiko Bank’s IPO on the Vienna Stock Exchange. Freshfields Bruckhaus Deringer reportedly advised Addiko Bank.

    The shares were listed on the Official Market of the Vienna Stock Exchange on July 12, 2019, and included in the ATX prime index on July 15, 2019. 

    According to Weber & Co. in the course of its IPO, 10.7 million Addiko Bank shares of existing shareholders were placed with institutional investors for an offer of EUR 16.00 per share. On the first day of trading, the Addiko Bank market capitalization amounted to approximately EUR 345 million, with a free float is approximately 55%. 

    Addiko Group is a banking group that focuses on consumers and small and medium-sized enterprises in Central and Southeastern Europe. The Group consists of Addiko Bank, the fully-licensed Austrian parent bank that is registered in Vienna and listed on the Vienna Stock Exchange and regulated by the Austrian Financial Markets Authority, as well as six subsidiary banks that are registered, licensed, and operating in Croatia, Slovenia, Bosnia & Herzegovina (two banks), Serbia, and Montenegro.

    The Weber & Co. team consisted of Partners Stefan Weber and Christoph Moser and Associates Angelika Fischer, Sonja Karpf, and Yvonne Gutsohn. 

    The Skadden, Arps, Slate, Meagher & Flom team was led by Partner Stephan Hutter.

  • Wolf Theiss, Clifford Chance, and Slaughter and May Advise on Blackstone’s Acquisition of CRH’s European Distribution Unit

    Wolf Theiss, Clifford Chance, and Slaughter and May Advise on Blackstone’s Acquisition of CRH’s European Distribution Unit

    Wolf Theiss worked with lead counsel Clifford Chance in advising the Blackstone Group on its EUR 1.64 billion acquisition of CRH’s European distribution business. Slaughter and May advised CRH on the transaction, which remains subject to regulatory approval.

    In addition, Niederer Kraft Frey and ARQIS acted as Swiss and German counsel to CRH, respectively.

    CRH sold its entire General Builders Merchants business in Europe, including its Sanitary Heating and Plumbing business, which supplies building materials to professional builders, specialist contractors, and DIY customers through a network of local and regional brands across six countries in Western Europe. 

    Dublin-based CRH manufactures and distributes construction products, such as heavy materials and elements to construct the frame and value-added exterior products. CRH products serve in the areas of residential, non-residential, and infrastructure. The company operates in 32 countries. According to CRH, the divestment to Blackstone concludes its exit from the distribution business in Germany, France, Switzerland, and Benelux, “creating a simpler and more focused business.”

    The Blackstone Group is an investment company with a focus on real estate, hedge funds, private equity, leveraged lending, senior debts, and rescue financing. The company is headquartered in New York and operates in the UK, Hong Kong, the UAE, China, Denmark, Germany, Luxemburg, Spain, Italy, India, France, South Korea, Australia, Singapore, and Japan.

    Wolf Theiss’s Austrian team was led by Partner Sarah Wared, supported by Partners Horst Ebhardt, Guenter Bauer, Holger Bielesz, Birgit Kraml, and Matthias Unterrieder, Senior Associates Markus Taufner, Paulina Pomorski, and Florian Pechhacker, and Associates Vilma-Reeta Kivilahti, Michael Kienzl, Clemens Pretscher, Simona Shpilsky, Stefan Horn, and Agnes Steinberger.

    Clifford Chance’s London-based team was led by Partners Spencer Baylin and Christopher Sullivan, supported by Partners Graham Phillips, Jenine Hulsmann, and Clare Hoxey, Senior Associates Barry Cahill, Oliver Marcuse, Jennifer Storey, and Greg Scott, and Associates Jorge Martin, Calvin Yang, and Shimin Lee. 

    The Slaughter and May team was led by Partners Jeff Twentyman and Murray Cox, assisted by Partners Claire Jeffs and Sara Luder, Associates Paul Thorpe, Dennis Mok, Emily Hunter, Katie Whiteman, Stephen Heagney, Chris Sharpe, and Edward Creamer, Visiting Lawyer Willem Bijveld, and Trainees Gabriel Lim, Rachel Rourke, Sophie Winton, and Robert Longman. 

    The Niederer Kraft Frey team was led by Partner Philipp Haas and included Partners Andreas Vogeli, Nicolas Birkhauser, Valerie Meyer Bahar, and Daniela Schmucki, Counsel Elga Reana Tozzi, and Associates Julia Tolstova, Paolo Bollini, Nicole Gutling, Shu Bernet-Zhang, and Anne Huber.

    The ARQIS included Attorney-at-Law Jorn-Christian Schulze.

    Editorial Note: After this article was published Schoenherr informed CEE Legal Matters that it had worked alongside Slaughter and May in advising CRH, and that its team consisted of Partners Christian Herbst and Michael Woller, Counsel Maximilian Lang, Attorneys-at-Law Constantin Benes, Teresa Waidmann, and Marco Thorbauer, and Associates Maximilian Nutz and Nina Zafoschnig.