Cerha Hempel has advised Areos Development and ARE Austrian Real Estate on the sale of 90 apartments in the jointly developed Eschengarten 1230 residential project in Vienna.
Areos Development GmbH is an Austrian owner-managed private company in the field of real estate development and construction.
ARE Austrian Real Estate GmbH was founded in 2007 with a focus on office and residential property development.
Cerha Hempel’s team was led by Partner Mark Krenn.
Herbst Kinsky has advised Byrd on its EUR 16 million Series B financing round.
According to the firm, the round was led by Mouro Capital, the VC arm of Santander Bank. Speedinvest, Rider Global, Venture Friends, and Verve Ventures also participated alongside “some of the existing investors.”
Founded in Vienna in 2016, Byrd provides an e-commerce fulfillment platform that is used in particular by online stores. According to Herbst Kinsky, the raised capital will be used, among others, to further develop the existing markets of Austria, Germany, France, and Great Britain and to expand into new markets.
The Herbst Kinsly team was led by Partner Florian Steinhart and included Attorney Fellix Kenbichler and Associate Magdalena Wagner.
Herbst Kinsky did not reply to our inquiry on the matter.
Baker McKenzie has advised Paragon Partners portfolio company WH Weka Holding GmbH on the sale of Info-Techno Baudatenbank GmbH to Byggfakta Group subsidiary Olmero AG. Binder Groesswang reportedly advised Olmero on the deal.
The transaction remains contingent on regulatory approval and is expected to close in the second half of 2021. Financial details were not disclosed.
According to Baker McKenzie, Info-Techno Baudatenbank is a provider for the digital management of construction projects in Austria offering professional tendering and product databases.
Paragon is an independent private equity firm in Europe with more than EUR 1.2 billion of equity under management. It was founded in 2004 and is based in Munich.
Weka was founded in 1973 as an administration and industry specialist publishing company. According to Baker McKenzie, “the Group has its headquarters in Kissing, Germany, and comprises 23 companies in Germany, Austria, Switzerland, and France. It generates an annual turnover of around EUR 250 million with a total of 1,500 employees.”
Baker McKenzie’s team included Partner Eva-Maria Segur-Cabanac and Associates Edmund Schuster and Clara Fercsak.
Binder Groesswang’s team reportedly included Partner Florian Khol and Senior Associate Christoph Schober.
Editor’s Note: On October 12, 2021, Binder Groesswang reported that the transaction was successfully closed. The firm’s team included Partners Florian Khol, Ivo Rungg, and Clemens Willvonseder, Counsel Hellmut Buchroithner, Associates Florian Gruber and Anian Grube, and Lawyers Christoph Schober and Manuel Mullner.
Wolf Theiss has advised Oberbank AG on its EUR 250 million green mortgage-covered bond issuance. Schoenherr advised joint lead managers Credit Agricole Corporate and Investment Bank, DekaBank Deutsche Girozentrale, Erste Group Bank AG, and Raiffeisen Bank International AG.
Schoenherr informs that the 0.125% bonds with a denomination of EUR 100,000 mature in 2031, were issued under Austrian law, and are listed on the Official Market of the Vienna Stock Exchange. Oberbank will use the proceeds of the issue exclusively to refinance housing loans taken out in Austria that meet the sustainability criteria of the EU Taxonomy.
Schoenherr and Wolf Theiss similarly advised on Oberbank’s EUR 250 million issuance of non-preferred senior eligible notes in January (as reported by CEE Legal Matters on January 29, 2021).
The Schoenherr team included Partners Christoph Moser and Ursula Rath and Associates Angelika Fischer and Hubertus Forsthuber.
The Wolf Theiss team included Partner Alexander Haas, Counsel Eva Stadler, and Associate Sebastian Prakljacic.
Schoenherr has advised shareholders Czipin Privatstiftung and Alois Czipin on the sale of Austrian consulting company Czipin Produktivitatssteigerungs-GmbH to EFESO Consulting France SAS.
Financial details were not disclosed.
According to Schoenherr, “Czipin will thus become a part of the global consulting specialist ROI-EFESO”. The transaction remains contingent on merger control clearance.
Schoenherr’s team was led by Partners Christian Herbst and Maximilian Lang.
Schoenherr could not provide additional information on the deal.
Brandl Talos has advised Sportradar on a ten-year Partnership with the US National Hockey League. Niederer Kraft Frey advised Sportradar on Swiss law with Covington & Burling and Lenz & Staehelin advising the NHL.
According to Brandl Talos, “Sportradar is designated to become the Official Betting Data Rights, Official Betting Streaming Rights and Official Media Data Rights Partner of the NHL, as well as an Official Integrity Partner of the NHL.”
Earlier this year, Brandl Talos advised Sportradar Group on the acquisition of InteractSport, (as reported by CEE Legal Matters on May 24, 2021), Synergy Sports (as reported by CEE Legal Matters on March 30, 2021), and Fresh Eight (as reported by CEE Legal Matters on March 18, 2021).
Brandl Talos’s team included Partners Roman Rericha and Markus Arzt and Associate Adrian Zuschmann.
PHH and Wistrand have advised Vertiseit AB on the acquisition of Grassfish Marketing Technologies GmbH for EUR 13.5 million. Frotz Riedl and Delphi advised the shareholders of Grassfish Marketing Technologies.
PHH’s team included Partners Rainer Kaspar and Nicolaus Mels-Colloredo, Counsel Philip Rosenauer, Senior Associate Leopold Opferkuch, and Associate Johannes Metzler.
Wistrand’s team advising Vertiseit on Swedish law was led by Partner Johannes Wardman.
Frotz Riedl’s team included Partner Paul Schoerghofer and Partner Ines Krausler.
Delphi’s team advising Grassfish Marketing Technologies on Swedish law was led by Partner Christoffer Mangelus.
E+H has advised Swiss Town Consult on the sale of Das Herzog residential project in Vienna to an unidentified Swiss asset manager.
The parties agreed not to disclose the transaction volume.
Swiss Town Consult is a company working on sustainable and profitable project development in Austria.
According to E+H, “the residential complex contains 147 efficient, high-quality apartments ranging in size from 36 square meters to 81 square meters, a commercial space on the first floor that has already been let on a long-term basis, and 65 parking spaces in the building’s own underground garage.”
E+H’s team included Partner Marco Steiner, Attorney Johannes Feilmair, and Associate Fabian Larcher.
E+H did not reply to our inquiry on the matter.
Fellner Wratzfeld & Partner has advised Soravia on its acquisition of the Immo-Contract companies from the Volksbanken Group. Binder Groesswang reportedly advised the seller.
Financial details of the transaction were not disclosed.
According to FWP, “the merger aims to leverage existing synergies in a bid to integrate the Immo-Contract companies and Soravia in one single real estate network from which clients of Volksbanken Group will also be able to benefit.”
FWP’s team consisted of Partners Markus Fellner and Lukas Flener, Attorneys-at-Law Roswitha Seekirchner and Peter Stiegler, and Associates Roman Schlemaier, Tim Pasternak, and Martin Navara.
The Supreme Administrative Court is gradually granting more rights to environmental organisations (EOs) in nature conservation procedures. Following a December 2020 ruling of the Supreme Administrative Court regarding the party status of EOs (for further details please see “New ruling expands environmental organisations’ rights in nature conservation procedures”), the Supreme Administrative Court remains on course with its pro-EO case law. In recent months, the court has issued several more interesting rulings that seem to strengthen EOs’ position in nature conservation proceedings.
Retroactive appeals against permits
Due to both EU law and European Court of Justice (ECJ) case law, in recent years, EOs have gradually been granted rights to participate and to appeal in proceedings under nature conservation law. Following the ECJ’s prominent decision in Protect, these rights derive from the Aarhus Convention and the Charter of Fundamental Rights, in combination with certain environment-related EU directives, such as the EU Habitats Directive and the EU Water Framework Directive. To conform with EU law, the Austrian legislature (at both the federal and provincial level) has been implementing said rights into Austria’s (EU-related) environmental law since 2018, including the Lower Austrian Nature Conservation Act (LANCA).
One of the main practical (not just academic) issues was ensuring legal certainty for permits granted long before the ECJ extended the participation rights of EOs beyond environmental impact assessments into other areas of environmental law. For example, are EOs entitled to subsequently appeal nature conservation permits from 2010?
To limit possible adverse effects (especially for project applicants), the Lower Austrian legislature stipulated two transitional provisions:
In its decisions from December 2020 to March 2021, the Supreme Administrative Court ruled on the ratio between those two transitional provisions. What all three cases from this period have in common is that the EO (the same one in all cases) filed a complaint against a decision that was issued more than one year before the amendment to the LANCA came into force. According to the first-instance administrative court, the EO therefore did not fulfil the prerequisites of the two transitional provisions for filing a complaint.
However, the Supreme Administrative Court decided that in those cases, the second transitional provision (Section 38(11) of the LANCA) applied. EOs that were already involved in the permitting procedures that were not legally concluded before the amendment came into force will continue to be involved. They can challenge the decision regardless of when it was issued as long as:
According to the Supreme Administrative Court, these two conditions were met in all three cases:
Therefore, it was possible for the EOs to appeal the decisions. Moreover, they filed the appeals in time so that the permits did not become formally legally binding. The project and the issues raised in the complaint will now have to be reassessed, possibly resulting in a modification, new obligations or even a refusal of the project.
Special requirements for servicing permits on EOs
In Austria, a nature conservation permit (or any legal act for that matter) requires notification of the parties in order to be effective. Various consequences are linked to the notification. For example, the time limit for filing an appeal begins at the time of service. This is important, because the appeal period is usually limited. In principle, if no appeal is lodged within this period, the decision is considered final and can no longer be contested.
Judgments and permits are generally served in person by the postal service. In exceptional cases, Section 25 of the Service of Documents Act allows service by public announcement. This is permissible, for example, in cases where the documents are served on many people not personally known to the authority. Service is considered to have been effected two weeks after the posting of the announcement on the authority’s official notice board.
This method was used in a nature conservation procedure regarding wind power plants in Carinthia. The authority served its permit – in addition to serving it on all parties – by public announcement on the official bulletin board and published it on its homepage.
One year later an EO filed a complaint against this permit. However, the six-week period to file a complaint had expired. Therefore, the first-instance administrative court dismissed the complaint, regardless of whether the EO had, in principle, been entitled to file a complaint under the Aarhus Convention.
However, the Supreme Administrative Court stated that notification by public announcement under Section 25 of the Service of Documents Act should be ultima ratio, to which a strict standard should be applied. The court ruled that before serving by public announcement, the authority should have first investigated who could have been considered parties to the permitting procedure. The authority should therefore have inspected the list of EOs recognised in Carinthia and served them personally. For this reason, service by public announcement was not legally effective and the permit had not been served on the EO. As such, the deadline for filing a complaint could not have expired and the EO had filed the appeal on time.
Further, it was irrelevant to the Supreme Administrative Court whether the EO had already been aware of the decision (eg, via the authority’s homepage). The fact that the EO had nonetheless waited for months before filing an action was therefore not an abuse of rights.
Comment
The Supreme Administrative Court’s decisions run contrary to the Lower Austrian legislature’s aim of ensuring legal certainty, especially for project applicants. Due to the court’s staggering reasoning, EOs will be able to fight permits issued years ago, even if the projects have already been implemented. Project applicants can no longer rely on the legal validity of their permits nor, consequently, their projects. The legal precedent now set in Lower Austria may also appear in the other federal provinces as similar transitional provisions have been enacted elsewhere.
With the aim of restoring legal certainty, the Lower Austrian legislature deleted the provision in Section 38(11) of the LANCA with effect from 30 April 2021. However, this may only increase legal uncertainty. It is unclear whether Section 38(10) of the LANCA will be applicable to EOs at all. Although the provision refers to the time when the permit was granted, the permits in question had not been granted (or served) specifically to EOs. As a result, EOs could be considered as bypassed parties and could therefore potentially challenge all decisions since the entry into force of the Charter of Fundamental Rights of the European Union in 2009. Therefore, it is questionable whether the Supreme Administrative Court will consider the provision to conform with EU law.
In the case of delivery, the authorities were also faced with a major administrative burden. They not only had to consult the list of recognised EOs according to the court, but likely also had to send their permits to all listed EOs. This is because it is impossible to foresee from the outset which EO will ultimately want to appeal a permit or will be entitled to appeal in relation to the respective procedure. In contrast, EOs were disproportionately favoured by the decision. It is not uncommon for EOs to be highly knowledgeable about projects in their area of activity. Nonetheless, not being responsible for informing themselves of new projects or permits, and instead waiting for these to be sent to them, can give them an immense advantage in preparing a complaint and collecting evidence.
However, the Carinthian legislature wanted to remedy the situation by providing permits on an electronic platform, which was created specifically for the participation of EOs. The permits are deemed to be delivered to EOs within two weeks. So far, the Supreme Administrative Court has not dealt with the question of whether this method is legitimate.
By Christian Holzer, Associate, and Sarah Wolf, Associate, Schoenherr