Graf & Pitkowitz has advised Germany’s Hubert Burda Media group on its acquisition of digital brands Netdoktor.at and Netdoktor.ch from Vienna-based Netdoktor.at GmbH.
Financial details of the transaction were not disclosed.
Netdoktor is a Vienna-based online portal for medicine and a healthy lifestyle.
The Graf & Pitkowitz team included Partners Ferdinand Graf and Jakob Widner and Attorneys-at-Law Andreas Edlinger, Axel Guttmann, Claudia Csaky, and Marija Krizanac.
Cerha Hempel has advised the RHI Magnesita Group on the sale of its participation in RHI Normag AS and Premier Periclase Ltd to Callista Private Equity, following a bidding process. Financial details were not disclosed.
RHI Normag AS and Premier Periclase Ltd are manufacturing companies based in Norway and Ireland respectively, both of which predominantly produce caustic calcined magnesia products for the fertilizer, animal feed, hydro-metallurgical, pulp and paper, and environmental and refractory industries.
Registered in the Netherlands and listed on the London Stock Exchange, RHI Magnesita is a group of companies operating in the production of refractory products.
Cerha Hempel’s team included Managing Partner Albert Birkner, Counsel Wolfgang Sindelar, and Associate Jakob Weber.
Cerha Hempel could not provide additional information on the deal.
Allen & Overy has advised Oesterreichische Kontrollbank on its issue of USD 1.5 billion 0.500% guaranteed global notes due 2026.
The notes are guaranteed by the Republic of Austria and listed on the regulated market of the Luxembourg Stock Exchange.
Oesterreichische Kontrollbank Aktiengesellschaft is Austria’s central financial and information services provider for export and capital markets. Its main functions include the administration of export guarantees as agent of the Republic of Austria and the financing of Austrian exports.
Allen & Overy advised Oesterreichische Kontrollbank on previous issuances in recent years, including last year (as reported by CEE Legal Matters on February 24, 2020), in 2019 (as reported by CEE Legal Matters on February 4, 2019), in 2018 (as reported on September 20, 2018), in 2017 (as reported on February 1, 2017), and in 2016 (as reported on November 16, 2016).
Allen & Overy’s Frankfurt-based team included Partner Marc Plepelits and Senior Associates Martin Schmidt and Rita Nicole Thomas.
Herbst Kinsky, working with lead counsel Linklaters, has advised Neovia Logistics Holdings on its acquisition of two unidentified companies from Austria’s Temmel Logistik Group. 42 Law reportedly advised the seller.
Financial details of the transaction were not disclosed.
TLC is a provider of logistics and warehouse management, assembly, rework, order picking, quality control, and cross-docking services for the procurement processes of automotive manufacturers.
Neovia Logistics is a US-based provider third-party logistics which operates more than 100 facilities in over 20 countries worldwide. The background of the transaction is the Neovia Group’s entry into the Austrian market and the addition of sophisticated inbound logistics capabilities to its offering.
Herbst Kinsky´s team consisted of Attorneys-at-Law Phillip Dubsky, Johannes Frank, Tanja Lang, and Sonja Hebenstreit, and Associate Carmen Walser.
Linklaters’ Frankfurt-based team included Partner Jochen Laufersweiler, Managing Associate Sascha Konwalski, and Associate Julia Rupp.
42 Law’s team was led by Founding Partner Christof Strasser.
“Austria has learned in the last year that every choice needs to be evaluated and reevaluated,” says Klaus Pfeiffer, Partner at Weber & Co. in Vienna. “Especially when it comes to making decisions about the pandemic, facts on which assumptions are based can change rapidly.” Having learned this lesson, he says, the Austrian government has “put itself in a good position to be flexible and able to constantly reassess its position – which will lead to better responses to the current crisis and future challenges.”
This might yet yield benefits as the pandemic, which became particularly strong in Austria in the Fall of 2020 and resulted in a second and a third lockdown, is now being put under greater control following strong vaccination efforts. “Our third lockdown ended on February 7, and some businesses have opened up as a result,” Pfeiffer says. “These are only certain sectors of the economy excluding mostly hospitality – a partial opening, if you will – with the state of affairs to be reevaluated in the following weeks.”
In the meantime, Austrian businesses are still receiving state aid. “It is a really good system, based on the turnover of a company rather than its profits,” Pfeiffer says, pointing out that this renders it easier to support companies quickly. “It is a pragmatic approach and I’m quite happy with how it turned out so far – Austria has been among the leaders in the EU in terms of the size of relief packages offered to businesses when adjusted for country size.”
Relief afforded to businesses also came in the form of a legislative fix for insolvency. “The insolvency framework of Austria generally allows businesses to have a 60-day gap between discovering the need to file for bankruptcy and actually filing paperwork,” Pfeiffer says. “This period was extended to 120 days for epidemics and pandemics last year, meaning that businesses that were lacking money or funds to operate last September might be filing for bankruptcy soon.”
However, he says, the system probably needs a more complete overhaul. He reports that “a new institute has been proposed – one that would be in line with the EU Directive on Restructuring and Insolvency.” According to him, “this would enable distressed companies to file for preventive restructuring, instead of having to go for bankruptcy straight away.” Preventive restructuring, which is known to some EU countries, would be a novel concept for Austria that so far knew only formal bankruptcy. “I expect that a draft should be coming our way in March or April – we have to be compliant with the EU Directive by July 17, 2021, so it’s definitely going to happen soon,” Pfeiffer says.
Pfeiffer says that Real Estate-related M&A has experienced a major shift from expectations last year at this time. “If you had asked me before the pandemic, I’d have recommended investing in the real estate hospitality sector,” Pfeiffer says. “Now this has shifted towards logistics and residential investments, with strong investments coming from Germany and with a focus on Vienna and its surrounding area, as well as Tyrol.”
Finally, Pfeiffer touches upon the EU’s changing relationship with the UK following Brexit. “The good thing is that there is an agreement in place, but there are still a lot of unknowns,” he says. “A true challenge for Austria in 2021 will be finding out how to work with the UK, given that they are a huge export partner. More legal certainty and predictability will be sorely needed, and, hopefully, we’ll get some this year.”
E+H has advised the shareholders of Curecomp Software on the sale of the company to the ProALPHA Group. Herbst Kinsky advised the buyer.
Financial details of the transaction were not disclosed.
Curecomp is a Linz-based provider of Software-as-a-Service solutions for digitizing and automating operational and strategic procurement processes in the manufacturing industry. ProAlpha is a provider of enterprise resource planning software for small and medium-sized businesses.
According to E+H, “Curecomp, which will continue to operate as an independent company and brand, will now work closely with ProALPHA and drive the growth of the group through the digitalization and automation of procurement processes.” Curecomp’s management will remain with the company following the transaction.
The E+H team included Partners Alric Ofenheimer, Clemens Lanschutzer, Jana Eichmeyer, Andreas Zellhofer, and Helmut Liebel and Associates Joseph Moser and Johannes Helm.
Herbst Kinsky’s team included Partner Christoph Wildmoser, Senior Associate Tanja Lang, and Associates Beatrice Blumel and Matthias Konrad.
Michael Lind, the former Head of Legal at Raiffeisen-Holding Niederoesterreich-Wien, has joined PwC Legal in Austria.
Lind, who joins as a Partner, spent five years at Schoenherr, before moving to Binder Groesswang, where he made in Partner in 2013. In 2014, he moved to Wolf Theiss (as reported by CEE Legal Matters on July 23, 2014), and in 2017, he moved in-house with Raiffeisen-Holding Niederoesterreich-Wien.
A graduate of the Karl-Franzens-Universitat Graz and University College London, Lind’s experience also includes stints as a Visiting Associate with both Slaughter and May and Alston & Bird.
Lind commented: “I am very excited to join PwC’s multidisciplinary team with its global reach.”
Originally reported by CEE In-House Matters.
When it comes to clearing a path in a forest to construct and operate an overhead electrical power line, electricity grid operators face various legal issues.
The clearance of a path involves felling trees underneath power lines to guarantee a minimum safe distance from the electric cables.
In recent years, the crucial legal question has been whether such path clearances must be considered when determining whether a specific project (ie, the installation of electrical power lines) is subject to an Environmental Impact Assessment (EIA).
While the European Court of Justice (ECJ) clarified this issue in 2018 (at least for non-governmental organisations), in light of the applicable EU EIA Directive (2011/92/EU), it remains unclear whether grubbing ups and path clearances should be treated in the same way in terms of their respective environmental impacts. In particular, must the permitting requirements of the Austrian Forestry Act stipulated for grubbing ups also be applied to path clearances in an EIA permitting procedure by reason of EU law?
The Supreme Administrative Court recently addressed this question in its decision on the 380kV overhead electrical power line in the province of Salzburg (380kV Salzburg line).
As one of the most significant infrastructure projects in recent history, the 113km Salzburg line is crucial for the security of Austria’s electricity supply, but also highly controversial. After years of planning and complex EIA proceedings, through the most recent decision of the Surpeme Administrative Court, the project finally holds its (legally binding) EIA permit.
Grubbing ups and path clearances under Forestry Act
Due to the distribution of competences between the federation and the nine provinces, the Austrian environmental law regime is fragmented. In general, a separate permit is required under each of the applicable laws.
However, Austrian legislation – based on the EIA Directive – requires an EIA for certain major projects that might significantly affect the environment. The EIA is integrated into a comprehensive and thorough permitting procedure before a single competent authority (a one-stop shop). Pursuant to Section 17(1) of the EIA Act, in an EIA procedure, in addition to the specific prerequisites set out in the EIA Act, the permit requirements of the relevant federal and provincial acts (eg, the Forestry Act) must also be applied to the specific project. An EIA permit can be granted only if all of those approval requirements are met. Therefore, the respective prerequisites of the Forestry Act discussed below must also be applied in EIA proceedings.
Grubbing ups and path clearances are subject to different legal frameworks under the Forestry Act:
‘Grubbing up’ is defined as the use of the forest floor for purposes other than forestry. Due to this broad definition, actions that do not involve the felling of a single tree may also qualify as grubbing up. For example, according to case law, the use of forest soil as a meadow without any felling can be regarded as grubbing up.
Pursuant to Section 17 (1) of the Forestry Act, grubbing up is generally prohibited. Exceptions may be granted if there is no special public interest in maintaining the specific area as a forest. Further, the authority may grant a permit for grubbing up if the public interest in another use of that specific area (especially for energy industry purposes) outweighs the public interest in maintaining the area as forest. In the interest of mitigating the effects of the grubbing up, the authority may require the applicant to reforest a non-forest area.
Chapter VI of the Forestry Act (“Use of forests”) contains, among other things, specific provisions for path clearances. In general, in immature high forest stands, clear-cutting and the removal of individual tree trunks beyond what is necessary for maintenance are prohibited.
Upon request, the authority may grant exceptions if the clearance of a path is necessary to install a power line and for the duration of its lawful existence. Clearing a path for power lines can also mean felling trees before they reach a certain height or planting small trees or bushes that do not obstruct the power line. In addition, the line owner must ensure the timely reforestation of the line area after each felling, as far as the existence of a power line installation precludes the full development of tree height growth on the line and an exemption permit has been granted (reforestation obligation).
The Forestry Act stipulates different requirements for granting the respective exemption permit for grubbing ups and path clearances. Due to the outlined comprehensive approach of the EIA Act, the permit requirements set out in the Forestry Act must be applied in the EIA procedure.
Path clearances may be subject to EIA
Under Austrian law, the EIA permitting procedure is distinguished from the EIA determination procedure. In the EIA determination procedure, the competent authority must ascertain whether a project falls within the scope of the EIA Act and therefore whether an EIA permitting procedure must be carried out.
Before its amendment, the EIA Act (at least from its wording) required an EIA only for major ‘grubbing ups’ within the meaning of Section 17(1) of the Forestry Act.
In a 2017 EIA determination procedure, the Supreme Administrative Court found that path clearances cannot be qualified as ‘grubbing ups’ within the meaning of the Forestry Act (ie, the use of the forest floor for purposes other than forestry) and that, therefore, an EIA might not be required under the EIA Act. The court doubted the correct transposition of the EIA directive in conformity with EU law; hence, it referred the question of whether path clearances fall within the concept of ‘deforestation for the purposes of conversion to another type of land use’, as set out in Point 1(d) of Annex II to the EIA Directive, to the ECJ.
In its preliminary ruling, the ECJ recognised that path clearance operations in a forest for the construction and operation of an overhead electrical power line are covered by Point 1(d) of Annex II of the EIA Directive. For the purpose of EIA determination proceedings, grubbing ups and path clearances are ‘deforestations’ within the meaning of the EIA Directive. Thus, path clearances must be considered when determining whether a specific project (ie, the installation of electrical power lines) should be subject to an EIA.
Driven by the ECJ’s decision, the Austrian legislature amended the EIA Act. Since November 2018, ‘path clearances’ within the meaning of Section 81(1)(b) of the Forestry Act may also require an EIA permitting procedure if a certain threshold is exceeded.
380kV Salzburg line
Federal Administrative Court decision
On 26 February 2019 the Federal Administrative Court granted Austrian Power Grid AG, pursuant to the EIA Act, an EIA permit for the construction and operation of the 380kV Salzburg line. In its findings, the court assumed a grubbing-up area of approximately 200ha and path clearances of approximately 600ha. The grubbing ups and path clearances were to be regarded as negligible or of medium to minor significance for the environment.
Appeal
The applicants’ appeal of this permit decision to the Supreme Administrative Court was primarily based on the abovementioned ECJ decision. The applicants claimed that the distinction between grubbing up and clearance of a path in EIA permitting procedures would be contrary to EU law in view of the ECJ ruling. In the present case, the area for grubbing up would not be 200ha but approximately 800ha. Therefore, the public interest in the use of the area for energy industry purposes would not outweigh the public interest in maintaining this area as a forest. Therefore, an EIA permit for the 380kV Salzburg line would not have been granted.
In summary, the Supreme Administrative Court had to clarify whether path clearances must be qualified as grubbing ups, and therefore whether the approval requirements for grubbing ups set out in Section 17 of the Forestry Act should also be applied to path clearances based on EU law.
Supreme Administrative Court decision
The court first emphasised that the cited ECJ decision dealt solely with the question of whether path clearances might trigger an EIA permitting procedure pursuant to the EIA Act or the EIA Directive, respectively. However, the ECJ had not addressed whether grubbing ups and path clearances must be treated equally in an EIA permitting procedure in terms of potential environmental impacts and approval requirements.
The Supreme Administrative Court highlighted the different objectives of the EIA determination procedure and EIA permitting procedure. According to Article 3 of the EIA Directive, an EIA must identify, describe and assess the specific environmental impacts of the respective project with respect to factors such as:
human beings;
fauna and flora;
water;
air; and
climate.
In contrast, the EIA determination procedure schematically assesses whether a specific project should be subject to a subsequent EIA permitting procedure based on certain definitions and thresholds. Thus, ECJ Decision C-329/17 was irrelevant for the present question of the alleged equal treatment of grubbing ups and path clearances in EIA permitting procedures.
Since the EIA Directive does not stipulate any prerequisites under forestry law, the application of the Forestry Act in EIA permitting procedures (in accordance with Section 17(1) of the EIA Act) and thus the differentiation between grubbing ups and path clearances remains. In short, while the authorisation of grubbing up requires a thorough balance of interests possibly combined with the obligation to reforest a non-forest area, a path clearance can be granted if it is necessary for the purpose of constructing a power line installation and for the duration of its lawful existence.
Pursuant to Section 13(10) of the Forestry Act, the line owner must ensure the timely reforestation of the line area after each felling, as far as the existence of a power line installation precludes the full development of tree height growth on the line. Therefore, a lower environmental significance can legitimately be attributed to path clearances than to grubbing ups, according to the Supreme Administrative Court.
The court held that:
From the point of view of EU law, in EIA permitting procedures it is not necessary to classify the clearance of a path as grubbing-up and therefore to assume in the present case that the area for grubbing-ups covers 800 ha. The EIA Directive does not require the application of the relevant prerequisites for grubbing-ups laid down in the Forestry Act to path-clearances as well.
Hence, the court dismissed the applicants’ appeal.
Comment
Combined, EU and Austrian law render the correct distinction of grubbing ups, path clearances and deforestations, as well as their respective treatment in different types of proceeding, difficult. In this decision, the Supreme Administrative Court has clarified another fundamental question regarding grubbing ups and path clearances.
Although grubbing ups and path clearances are both ‘deforestations’ within the meaning of the EIA Directive for the purpose of EIA determination procedures, and thus path clearances need to be considered when determining whether a specific project is subject to an EIA, this has no impact on EIA permitting procedures.
In view of the different objectives of EIA determination procedures and EIA permitting procedures, and the lack of specific forestry approval requirements in the EIA Directive, the court’s ruling on the following is entirely consistent. Path clearances are not to be qualified as ‘grubbing ups’ within the meaning of the Forestry Act.
The different treatment of grubbing ups and path clearances in EIA permitting procedures fully complies with EU law. As such, the court’s decision on the 380kV Salzburg line should be endorsed.
By Christian Holzer, Associate, Schoenherr
Long-time CMS Partner Johannes Trenkwalder will join photovoltaic plant developer Green Source as Legal Counsel and Principal.
Green Source has, to date, developed and realized 27 photovoltaic plant projects with a total capacity of over 332 MW, totaling an investment volume of over EUR 650 million in Central and Eastern Europe.
Trenkwalder will leave CMS Reich-Rohrwig Hainz on January 31, 2021. He has been with the firm since 2000 and has served as the head of the CMS Reich-Rohrwig Hainz office in Kyiv, as co-head of the CEE German Desk, and as head of the Energy Group.
“Of course, we are very sorry to see Johannes Trenkwalder leave,” said CMS RRH Managing Partner Johannes Juranek, “but the new appointment just demonstrates the excellent relationship our lead partners have with our clients. We are extremely thankful to Johannes Trenkwalder for the outstanding reputation and powerful team that the CMS Energy group has today.”
“The decision to no longer work as a lawyer for many different companies, but to focus on one client, was made for exclusively personal reasons,” explained Johannes Trenkwalder. “I have greatly appreciated the CMS environment over all these years and my enduring admiration can be seen from the fact that I am now looking forward to continuing to work with them as a client.” He added that one of the main reasons for the move is that “the expansion of solar power is of major importance and many more large projects are needed in Central and Eastern Europe. As the European Environment Agency recently announced, the EU needs to shift the electricity sector away from oil, gas, and coal towards renewable energies even more quickly than originally thought in order to achieve its climate targets.”
Originally reported by CEE In-House Matters.
Schoenherr has advised joint lead managers DZ Bank, Erste Group, Helaba, and Raiffeisen Bank International on the successful issue of notes by Upper Austrian-based Oberbank Aktiengesellschaft, which was advised by Wolf Theiss.
According to Schoenherr, “the issue of EUR 250 million 0.625 % non-preferred senior eligible notes under Austrian law was completed on the value date January 26, 2021. The bonds were issued under Oberbank’s Debt Issuance Programme, will mature in 2029, and have a denomination of EUR 100,000 each. They are listed on the Official Market of the Vienna Stock Exchange.”
Schoenherr’s team included Partner Christoph Moser and Associate Angelika Fischer.
Wolf Theiss’s team was lead by Partner Alexander Haas.