CMS has advised Florian Prasky on co-founding with Katharina Porenta Wattwise FlexCo.
According to CMS, Wattwise FlexCo will offer a broad range of services related to decentralized energy supply. The company’s focus includes planning, implementation, and operation of energy communities and communal generation systems.
The CMS team included Partner Georg Gutfleisch and Associates Alexandros Hantasch and Rebecca Herlitz.
Wolf Theiss has advised Raiffeisen Bank International on the issuance of EUR 650 million fixed to reset rate additional tier 1 notes and on its tender offer for the repurchase of EUR 650 million fixed to reset rate additional tier 1 notes issued in 2017. Freshfields Bruckhaus Derringer reportedly advised the banks.
BofA Securities Europe, BNP Paribas, Citigroup Global Markets Europe, Credit Agricole Corporate and Investment Bank, Raiffeisen Bank International, and UBS Europe were the joint lead managers, while Banco de Sabadell and ING Bank Belgian Branch served were the co-managers.
According to Wolf Theiss, this issuance strengthens RBI’s regulatory capital position and reflects its commitment to maintaining a robust capital base in line with European banking regulations.
The Wolf Theiss team included Partner Claus Schneider, Counsels Eva Stadler and Christine Siegl, and Senior Associate Sebastian Prakljacic.
E+H has advised Austrian Ski Association’s subsidiary Austria Ski Team Handels- und BeteiligungsgesmbH on a joint venture concerning the online platform Skizeit.
According to E+H, as part of the partnership, “Skizeit Time & Data FlexCo was founded, a company that aims to promote the digital development of Austrian winter sports. The new joint venture will further develop the well-known online platform skizeit.at, which has been established as the leading results platform in Austrian skiing since 2002 and plays an important role for clubs and local ski associations with over 2,000 races and 18 million page views per year. The joint venture is designed to make it easier to organize and hold competitions, with comprehensive digital tools such as referee management and a coach and instructor database. In addition, solutions for timekeeping, performance analysis, and strategic partnerships will be integrated into the company.”
The E+H team included Partner Johannes Feilmair, Attorneys at Law Franziska Egger and William Redl, and Associates Alexander Koschell and Gabriel Strasser.
E+H did not respond to our inquiry on the matter.
Few topics have sparked as much controversy in 2024 as the seizure and examination of mobile data carriers and the data found therein. Despite an urgent need to have the legal framework amended by the end of 2024, a new draft bill was published only on 20 November 2024. We take a look.
The current legal framework
If the Public Prosecutor’s Office (PPO) wants to seize objects (for evidentiary purposes, to secure civil-law claims or to secure the enforcement of property rights), the Austrian Code of Criminal Procedure (ACCP) requires that the PPO establishes the status of the suspicion on which the investigative measure is based, the objects to be seized and their relevance, and why the seizure is proportionate and necessary; in other words, why the evidentiary purpose of the measure would be jeopardised if more lenient actions would be taken. Importantly, a court order is not necessary, as opposed to house searches or surveillance measures.
For a long time, the seizure and subsequent analysis of mobile data and data carriers was not treated any differently. Mobile data carriers were treated like “ordinary” objects, regardless of the external and internal data found when analysing them.
However, this changed due to two decisions in particular:
Decision by the Constitutional Court, December 2023
On 14 December 2024 (G 352/2021), the Constitutional Court of Austria rendered a landmark verdict on whether the provisions applicable to the seizure of “ordinary” objects also apply to the seizure of mobile data and data carriers. The Court concurred with numerous experts and rejected this notion. In essence, it stated that the invasion of data protection and privacy was particularly intense, as access to a data carrier not only provided a snapshot of the person’s behaviour, but comprehensive insight into significant parts of their past and present life.
The Court further provided a guideline on which aspects would need to be considered when amending the legal framework. Most prominently, the PPO would need to obtain an order by the respective court of first instance. Furthermore, the lawmaker would have to ensure that the analysis is comprehensible and verifiable, and the data carriers would only be evaluated to the extent necessary. It would also have to be ensured that the persons concerned received the information necessary to safeguard their rights in the proceedings. The Court also suggested implementing independent supervision, which reviewed whether the PPO or the police remained within the scope of the court order.
The Court granted the lawmaker time until 31 December 2024 to amend the current provisions. From 1 January 2025, the current provisions on seizures of all kinds will cease to be in force.
Decision by the ECJ, October 2024
The uncertainty regarding the seizure of mobile data and data carriers was further aggravated by a decision of the European Court of Justice (ECJ) dated 4 October 2024 (C-548/21). This decision was based on Directive (EU) 2016/680, read in light of certain provisions of the EU Charter of Fundamental Rights.
In the decision, the ECJ stated that mobile data and data carriers could be seized and analysed regardless of the seriousness of the offence. Therefore, such measures are not restricted only to grave offences.
However, the ECJ then essentially took a stance previously also taken by the Constitutional Court in its earlier (and completely separate) decision, highlighting the requirement of a court order, clear and precise rules defining the type or categories of the offences concerned to ensure proportionality, and the rights of the persons concerned to be informed about the purpose of the data processing and the remedies available to them.
Contrary to the decision by the Constitutional Court, the ECJ’s decision binds all Member States with immediate effect regarding the interpretation of the relevant EU law provisions. A national court that disregards a decision of the ECJ risks violating EU law.
Decision by the Vienna Regional Criminal Court, October / November 2024
Additionally, in a recent (unpublished and pending) decision by the Vienna Regional Criminal Court (332 HR 369/23 m), the Court stated that the processing of data not relevant as evidence, or of personal data not necessary for the purposes of the investigation, constitutes a violation of the law. Data resulting from such unlawful conduct must immediately be erased from the copies of data or mirror images.
The status of the amendment of the current legal framework
In June 2024, the Government presented a draft bill to amend the provisions on the seizure and analysis of mobile data and data carriers, which also included other amendments to the ACCP. However, due to heavy criticism, the draft bill was pulled.
A new draft bill was published only on 20 November 2024, just in time to enable its entry into force in 2024 (subject to the passing of a resolution to that effect).
The key points of the draft bill are:
As previously, in addition to the amendment of the regime to seize and analyse mobile data and data carriers, the draft bill contains many other amendments to the ACCP, such as implementing measures to expedite pre-trial proceedings.
In light of the recent elections in Austria, which have left the previous government that drafted the bill without a majority, it remains to be seen whether this draft bill will come into force and, if so, whether it will undergo any changes.
Decree of the Ministry of Justice, 11 November 2024
For the time being, legal practitioners remain in limbo about the circumstances under which the seizure and analysis of mobile data and data carriers are lawful. Addressing this legal uncertainty and attempting to offer at least a temporary solution, particularly due to the decision of the ECJ, the Ministry of Justice recently published a Decree on how the PPO are to proceed. Accordingly,
The subordinate authorities (in particular the PPO) are bound by the provisions of the Decree, provided these do not contradict the laws.
Conclusion
Seizures and analysis of mobile data and data carriers are a fundamental part of criminal investigations and beyond. Therefore, it is to be hoped that the lawmaker will soon amend the current legal framework by addressing the courts’ concerns.
Whatever the outcome, it is to be expected that any legal framework that comes into force will be thoroughly challenged by those individuals and legal entities affected by such measures.
By Oliver M. Loksa, Counsel, Schoenherr
CMS has advised Goldbach Group on the sale of Goldbach Austria to Azerion.
The transaction remains contingent on regulatory approval.
Zurich-based Goldbach Group is a marketer and broker of digital and linear advertising in Switzerland, Germany, and Austria.
Azerion is a digital advertising and entertainment media platform.
The CMS team included Partners Alexander Rakosi and Dieter Zandler, Attorneys at Law Marie-Christine Lidl and Lisa Oberlechner, and Associate Alexander Sommergruber.
Editor’s Note: After this article was published, CEE Legal Matters learned that Cerha Hempel advised Azerion. The firm’s team included Managing Partner Clemens Hasenauer and Partner Harald Stingl.
Brandl Talos, working with Bryan Cave Leighton Paisner, has advised Sportradar on the acquisition of the assets of XLMedia PLC’s North American business for USD 30 million. Ashurst reportedly advised XLMedia.
Sportradar Group is a provider of sports data and content.
XLMedia PLC is a sports digital media company. Following the sale of its European business earlier this year, XLMedia has now sold its remaining North American media assets to Sportradar.
In 2022, Brandl Talos advised Sportradar on a joint venture with Ringier (as reported by CEE Legal Matters on July 22, 2022). In 2021, the firm advised Sportradar on a ten-year partnership with the NHL (as reported by CEE Legal Matters on July 8, 2021) as well as the acquisitions 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). In 2020, Brandl Talos advised Sportradar on its acquisition of UK-based personalized messaging platform operator Fresh Eight (as reported by CEE Legal Matters on March 18, 2020). In 2019, the firm advised Sportradar on its acquisition of Optima (as reported by CEE Legal Matters on October 24, 2019). Finally, in 2018, the firm advised on Sportradar’s sale of stake to the Canada Pension Plan Investment Board and TCV (as reported by CEE Legal Matters on July 13, 2018).
The Brandl Talos team included Partners Thomas Talos and Stephan Strass.
CMS has advised 6 Degrees Capital and other investors on the EUR 5 million funding round for Nobilegroup. KPMG Law advised Nobilegroup.
Nobilegroup is a Vienna-based energy start-up that specializes in renewable energy solutions. According to CMS, “the investment enables the Vienna-based start-up to accelerate its product development and further expand its international market presence.”
In addition to 6 Degrees Capital D2 Fund, Doral Energy Tech and Helen Ventures participated as well.
The CMS team included Partner Alexander Rakosi and Lawyer Marco Steiner-Selenic.
The KMPG Law team included Partners Pablo Essenther and Dieter Buchberger, Senior Associates Mario Burger, Lisa Jobst, Lena Urban, and Hannah Kercz, and Professional Support Lawyer Sara Bayat.
Wolf Theiss has advised joint lead managers and bookrunners Raiffeisen Bank International and M.M.Warburg & Co on the exchange offer of bonds issued by UBM Development in 2019 and 2021 and on the subsequent cash subscription offer of the EUR 93 million 7% green bond 2024-2029. DLA Piper advised UBM Development.
UBM Development is an Austrian real estate developer.
According to Wolf Theiss, “the green bonds have a maturity of five years and were placed with institutional and retail investors with a coupon of 7% per annum. The green bonds are listed on the Official Market of the Vienna Stock Exchange.”
The Wolf Theiss team included Partner Claus Schneider, Counsels Nikolaus Dinhof-Renezeder and Eva Stadler, Senior Associate Sebastian Prakljacic, and Legal Trainee Negar Hashem.
The DLA Piper team included Partner Christian Temmel and Counsel Christian Knauder-Sima.
Wolf Theiss has advised Veroniki Holding on the sale of Propangas to Doppler Beteiligungs.
Veroniki Holding is an Italy-based investment company engaged in the distribution of liquefied petroleum gas.
Propangas is a wholesaler of liquid gas.
Doppler Beteiligungs is the Austrian investment arm of Doppler Mineralole.
The Wolf Theiss team included Partners Sarah Wared and Guenter Bauer, Senior Associates Martin Gassler and Sandra Seldte, and Associate Klemens Kendler.
Wolf Theiss was unable to provide additional information on the matter.
Brandl Talos has advised DirectSens on the sale of its LactoSens biosensor technology to Kerry Group. Wolf Theiss reportedly advised Kerry Group.
Kerry Group is a public food company headquartered in Ireland.
DirectSens specializes in developing biosensors, including LactoSens, which is a rapid lactose detection tool. According to Brandl Talos, the “acquisition of LactoSens by Kerry Group reflects DirectSens’ success in developing cutting-edge biosensor solutions and represents a move by Kerry Group to complement its offering in lactase enzymes.”
The Brandl Talos team included Partners Roman Rericha and Stephan Strass, Senior Associate Kevin Bley, and Associate Daniel Habich.