Category: Austria

Christopher Engel and Laurenz Liedermann have been promoted to Partner at Eisenberger & Herzog.

Christopher Engel studied Law at the University of Graz and Business Law at the University of Innsbruck. Before joining Eisenberger & Herzog in 2015, he worked for four years at the Institute for Civil Law at the University of Graz and was a lecturer at the University of Economics Campus 02 in Graz.

According to the firm, “Engel advises clients primarily on corporate and property transactions, cooperations and corporate law. More recently, he has also advised on startups. He will be working with the Corporate and M&A and Real Estate Law practice groups in Graz.”

Laurenz Liedermann graduated from the University of Vienna and the University of Oxford with a focus on contract, corporate finance and trust. Prior to joining Eisenberger &Herzog, he was a research assistant at the University of Vienna and spent seven months at Latham & Watkins. Liedermann primarily advises clients on acquisition and property financing, Lombard loans, and leasing financing. Another focus of his work is advising on complex restructurings.

“Within five months we welcomed three lawyers and now — as a bang — two new partners,” said Partner Dieter Thalhammer. “Everyone comes from our own ranks, everyone shows clearly: with us you can still have a career! Even in difficult times like this, we stand by our team and act with foresight. With Christopher Engel and Laurenz Liedermann we appoint two strong attorneys with excellent know-how to partner — we are very excited about this important step.”

Schoenherr has successfully represented TIWAG-Tiroler Wasserkraft AG before Austria’s Administrative Court in the last challenge of the decision to implement Kuhtai Storage Power Plant project.

According to Schoenherr, the project “includes the expansion of the Sellrain-Silz power plant group by an additional storage facility, additional bypasses from the Stubai Valley around 20 kilometers away, and an additional power plant.” According to the firm, “with an investment volume of just under EUR 1 billion, it is one of the largest hydropower projects in Austria.”

With the decision of the [Administrative Court], the EIA approval was finally confirmed,” said Schoenherr Partner Christian Schmelz, who represented TIWAG in the EIA approval process. “The [Court] confirmed that the expressed concerns of the environmental organizations and the other project opponents were unfounded. There is nothing in the way of the establishment of this project, which is so important for the energy transition and climate protection.”

In addition to Schmelz, Schoenherr’s team consisted of Lawyers Christoph Cudlik and Philipp Strondl.

Binder Groesswang and Clifford Chance Frankfurt have advised BNP Paribas’ Arval subsidiary on the acquisition of UniCredit Leasing Fuhrparkmanagement GmbH and a long-term cooperation agreement with UniCredit Bank Austria.

Arval and its Austrian subsidiary Arval Austria GmbH acquired 100% of the shares in UniCredit Leasing Fuhrparkmanagement GmbH, the Austrian fleet management company of the UniCredit group. Closing remains subject to approval by Austrian antitrust authorities.

Arval — which specializes in full-service vehicle leasing and new mobility solutions — leased 1.3 million vehicles last year. The company has more than 7,000 employees in 30 countries around the world.

The agreement also includes a long-term cooperation agreement between Arval Austria and UniCredit Bank Austria, enabling Arval to offer fleet management and mobility services to UniCredit Bank Austria’s corporate customers.

Binder Groesswang’s team was led by Partner Thomas Schirmer and included Partners Stephan Heckenthaler, Horst Lukanec, and Johannes Barbist, Counsel Stefan Frank, Senior Associates Manuel Mullner and Philipp Spring, and Associates Pia-Alena Havel and Andreas Perkonig.

Clifford Chance’s team included Partner Thomas Krecek, Senior Associate Moritz Petersen, and Associate Lara Stelmach.

Binder Groesswang did not reply to our inquiry about the deal.

Editor’s Note: After this article was published Fellner Wratzfeld & Partner announced that it had advised UniCredit Bank Austria on the deal. The firm’s team included Partners Markus Fellner, Lukas Flener, Paul Luiki, and Kurt Wratzfeld, Attorneys Florian Dauser and Severin Plattner, and Associates Felix Kirkovits and Daniel Wadl.

Automated Lane Keeping Systems will be harmonised in more than 60 countries in 2021.

The Uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems, a UN Regulation, were adopted by more than 60 countries at the end of June. The Regulation was introduced by Japan and Germany. It will enter into force in January 2021.

Strict requirements for Automated Lane Keeping Systems for cars, once activated, will be introduced by the UN regulation. The Automated Lane Keeping Systems will be in primary control of the vehicle; but the driver can override such system and can at any moment be requested by the system to intervene. It is the first binding international regulation on level 3 vehicle automation.

Some of the key points of the binding UN Regulation are that i) the driver must be in the driver’s seat with his/her seat belt fasted, ii) the driver is available to take over control, iii) no system failure is detected, iv) the Data Storage System for Automated Driving (DSSAD) – so called “black box” – is operational, v) the vehicle is on roads where pedestrians and cyclists are prohibited and which, by design, are equipped with a physical separation that divides the traffic moving in opposite directions. The Automated Lane Keeping System is limited in its current form to a speed of max. 60 km/h. This means that the systems currently could not be activated on highways in Austria but only on specific roads (e.g., in Vienna).

The EU Commission announced its intention to apply the UN Regulation within the EU upon entry into force, but the date is uncertain. It will be interesting to see what the EU Commission makes of the UN Regulation and how each EU member state will react on the regulatory front.

Will it change the way we drive?

The UN Regulation sets out performance-based requirements that must be met by manufacturers before any vehicles can be sold within countries mandating the UN Regulation. Since the EU is planning to adopt the UN Regulation, we expect that EU manufacturers, but also Japanese manufacturers, will implement the UN Regulation before putting any vehicle with Automated Lane Keeping Systems on the market.

In Austria – a country of OEM suppliers rather than OEMs – the Ministry of Traffic, Innovation and Technology issued a national regulation, the so-called Automatisiertes Fahren Verordnung – AutomatFahrV, more than one year ago (see Schoenherr blog entry here). Thus, as per Regulation No 79 of the Economic Commission for Europe of the United Nations (UN/ECE), a parking assistant and a highway assistant with automatic lane keeping, a system that controls the longitudinal guidance of the vehicle, such as acceleration, braking, stopping, distance control as well as the lateral guidance of the vehicle to the lane using the automatic steering function, may be used on the road and built in mass production. However, the driver must be able to take over control at any time. Austria is ahead of the game on the regulatory front, especially in comparison with other EU member states.

Who pays?

Simplified, the vehicle owner is – at least in Austria under the current legislation – liable for any accident involving his/her vehicle for injury/death or damage to property (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz – EKHG) unless the accident was caused by an unavoidable event, not due to a quality defect or failure of performance of a motor vehicle. Fault of the vehicle is not a prerequisite for the strict liability. For example, if a parking assistant incorrectly determines the distance to the next vehicle, it is still the vehicle owner (or rather the insurer) who is liable for the damage – even if the owner behaved correctly. Fault-based liability according to general tort law may also apply to the driver of the vehicle; the distinction between the driver and the owner becomes particularly relevant if the vehicle owner is not the person driving the car at the time of the accident. Situations where fault-based liability for the driver fails, are not too common.

The question is, if and how an OEM is liable for any faults of the vehicle or its programming. Strict liability like Product Liability (Produkthaftungsgesetz – PHG) might apply. The threshold to determine that a product is faulty at the time the product is placed on the market is, however, quite high. Moreover, it is not completely clear yet whether self-developed or even externally developed and purchased software is indeed a product. But opinions are generally affirmative. Good news for OEMs: The requirements for general fault-based liability will in most cases not apply, since fault can rarely be attributed.

Outlook on autonomous driving and liability

OEMs and OEM suppliers must consider potential legal consequences, including potential liability, when developing software for (partially) autonomous cars at any level. In Austria, at least regulatory legislation is comparatively far ahead. An EU effort and any efforts spanning several nations on UN level regarding regulatory legislation, is a welcome imitative; nonetheless, civil liability must not be forgotten and should be simultaneously clarified.

By Christoph Haid, Partner, and Sara Khalil, Attorney at Law, Schoenherr

Tatjana Katalan-Dworak and Ulrike Sehrschon will co-head the Public Commercial Law practice group at Eisenberger & Herzog.

According to Eisenberger & Herzog, “with this takeover, leadership in the Public Business Law / Regulatory team at E&H is finally in the hands of women. The two partners have already largely determined the path of the law firm in recent years. Numerous steps have been taken for equal opportunities, the advancement of women and the reconciliation of career and family. Tatjana Katalan-Dworak confirms that flexible working hours at E&H were a practice long before Corona.”

Katalan-Dworak has been a partner at Eisenberger & Herzog for 14 years. Sehrschon has been a partner at the firm for ten and a half years. 

“Tatjana Katalan-Dworak and Ulrike Sehrschon have contributed significantly to the development of the public commercial law department at E&H over the past ten years,” said Eisenberger & Herzog Partner Peter Winkler. “Numerous well-known mandates go back to our two partners. “

Cerha Hempel, working alongside Deloitte Legal in Germany, has advised Germany’s GBTEC Software + Consulting AG on the acquisition of all shares in Avedos, a Vienna-based GRC software specialist through direct and indirect share purchases and by means of a contribution by Samuel Brandstatter – the founder, managing director and shareholder of Avedos – who took equity in GBTEC as part payment for the sale of his stake in the company. 42law advised Brandstatter on the deal.

According to Cerha Hempel, “despite the extremely difficult circumstances resulting from the COVID-19 pandemic, the transaction was carried out in the space of just a few weeks and has been made possible by teams of attorneys at Cerha Hempel in Austria and Deloitte Legal in Germany, all of whom were working from home.

Cerha Hempel’s team was led by Partner Albert Birkner and included Counsel Katharina Majchrzak, Senior Associates Martin Eichinger and Franziska Paefgen, and Associates Jakob Weber and Boris Treml.

Deloitte Legal’s team in Dusseldorf was led by Partner Felix Felleisen and included Counsel Max Luerssen.

Christof Strasser led the 42law team.

Herbst Kinsky has advised Viennese start-up GoStudent GmbH on its EUR 8.3 million series A financing round, which was led by VC fund Left Lane Capital.

According to Herbst Kinsky, “GoStudent [has] developed a novel learning platform for students, through which online tutoring can be accessed. The tutoring is held live in a virtual classroom and is booked in a subscription package. In the last twelve months, the startup has recorded a monthly growth rate of 30 percent.”

Herbst Kinsky’s team included Partner Florian Steinhart and Attorney Magdalena Wagner.

Herbst Kinsky did not reply to our inquiry on the matter.

BPV Huegel has advised Raiffeisen Informatik on the sale of shares in SoftwareONE Holding by KKR, Raiffeisen Informatik, and the heirs of Patrick Winterin via an accelerated book-building process. Lenz & Staehelin acted as Swiss counsel for the sellers, KKR was advised by Simpson Thacher & Bartlett, and the heirs of Patrick Winter were advised by Switzerland’s Kung Rechtsanwalte & Notare firm.

The selling shareholders sold a total of 17,000,000 shares, corresponding to approximately 11% of the SoftwareONE share capital, at a price of CHF 22.50 per share for total proceeds of approximately CHF 380 million. Credit Suisse AG, J.P. Morgan Securities plc, UBS AG and KKR Capital Markets Partners LLP acted as joint book-runners for the placement. 

According to BPV Huegel, “upon completion of the transaction, the three sellers will hold 5.18%, 2.78% and 2.75% of SoftwareONE Holding AG respectively. As a result of the transaction, the free float of SoftwareONE is expected to increase to over 55%.SoftwareONE, headquartered in Switzerland, is a leading global provider of end-to-end software and cloud technology solutions. With approximately 5,400 employees and sales and service capacities in 90 countries, SoftwareONE offers software and cloud solutions from more than 7,500 publishers to approximately 65,000 business customers.

The BPV Huegel team included Partners Thomas Lettau, Christoph Nauer, and Attorney at Law Roland Juill.

The Lenz & Staehelin team consisted of Partners Matthias Wolf, Patrick Schleiffer, and Associate Patrick Scharli.

Simpson Thacher’s team was led by London-based Partner Nicholas Shaw.

Kung Rechtsanwalte & Notare AG’s team was led by Consultant Manfred Küng.

Schoenherr has advised Union Investment on the acquisition of a residential complex in Graz from the Immola Group. Scherbaum Seebacher advised the Immola Group on the deal.

Union Investment is a real estate investment manager which has been investing in real estate projects for over 50 years and has total real estate assets of EUR 34.3 billion.

The Immola Group specializes in the holistic development, financing, and support of residential construction projects in Graz and the surrounding area. Its portfolio includes residential complexes, single and multi-family houses as well as rental and investor properties.

According to Schoenherr, “the transaction enables the construction of around 255 new residential units as well as additional office and retail space in a coveted district of Graz.”

The Schoenherr team was led by Partner Arabella Eichinger and included Lawyers Benjamin Schlatter and Serap Aydin and Trainees Constantin Klausegger and Christoph Tittes.

Scherbaum Seebacher’s team consisted of Partner Sascha Verovnik.

Eisenberger & Herzog has helped OBB-Technische Services GmbH, LTE Logistik Transport-GmbH, and ELL Austria GmbH set up a joint venture to establish and operate a service base for locomotives.

According to Eisenberger & Herzog, “the joint venture will offer workshop and maintenance services to locomotives of all manufacturers at a strategically convenient base. In addition to the merger control proceedings before the European Commission, the special feature of the project was to ensure compliance with commitments made in a previous merger process. This challenge was mastered by corporate governance of the new joint venture coordinated with the Austrian official parties.”