Category: Austria

Brandl & Talos has supported APEX Ventures GmbH in the creation of the APEX Digital Health venture capital fund, designed for investments in new companies with unique technologies and applications in the healthcare sector. 

According to Brandl & Talos, “on the way to the target fund volume of EUR 50 million, APEX has already announced that the threshold for the first ‘Friends & Family’ closing has been reached,” and that “the first investment in MindPeak, a Hamburg-based AI software developer in the field of pathology, has already been landed.”

The Brandl & Talos team was directed by Partner Roman Rericha and Lawyer Markus Arzt, who also assisted APEX on the launch of its first fund, back in 2016 (as reported by CEE Legal Matters on November 4, 2016).

“Digital Health is growing worldwide,” Rericha commented. “Due to the growing population, increasing life expectancy, and increasing costs, there is a great need for new and innovative solutions in the health sector. APEX Digital Health has set itself an exciting focus and we are looking forward to further cooperation.”

Wolf Theiss has advised the REWE group on the sale of a property in the Donaustadt district of Vienna, following a two-stage bidding process. The successful bidder, BUWOG, was advised by Lattenmayer Luks & Enzinger.

Wolf Theiss’s team included Partner Peter Oberlechner, Senior Associate Christian-Maurice Frick, and Associate Natascha Johannik.

Lattenmayer Luks & Enzinger’s team was led by Attorney Arno Behm. 

Cerha Hempel has advised the shareholders of Austrian electric car manufacturer Elin Motoren GmbH on the sale of a 70% stake to Voith technology group. Schoenherr reportedly advised the buyers on the deal, which remains subject to competition authority approval.

Elin Motoren produces electric motors and generators and provides individual solutions for industrial applications. According to Cerha Hempel, “Elin Motoren focuses on manufacturing electric machines, low and medium voltage motors and generators, in particular for wind energy and decentralized energy systems.” 

The Cerha Hempel team included Partners Johannes Aehrenthal and Bernhard Kofler-Senoner, Attorneys Jakob Hartig and Michael Mayer, and Associates Florian Mitterer and Michaela Kober.

Stefan Paulmayer has been promoted to Partner at CMS Vienna.

After graduating from the University of Vienna in 2007, Paulmayer began his career as an associate at CMS in 2008. According to CMS, “as a partner, he will focus on the core areas of financing and real estate financing, as well as advising national and international clients on restructurings and refinancings, securitizations, derivative transactions, crypto assets, and new technologies.” 

“In Stefan Paulmayer we are acquiring an experienced expert in Banking & Finance,” said CMS Partner Gunther Hanslik. “His arrival means that we are expanding our service portfolio and are delighted to be able to support clients in the areas of blockchain, smart contracts, and crypto assets as well now.”

Right to a copy of personal data

With the adoption of the EU General Data Protection Regulation (2016/679) (GDPR), the EU legislature intended to strengthen the rights of individuals (ie, data subjects or applicants) by giving them greater control over how their personal data is used. Accordingly, the right of access has been reinforced.

Notably, data controllers must provide applicants with a copy of their personal data (Article 15(3) of the GDPR). This provision has led to some confusion over whether Article 15(3) grants applicants the right to access files or documents containing personal data such as emails, letters and contracts. Files or documents do not qualify as ‘personal data’ but are the ‘medium’ on which the data is stored. Still, lawyers are increasingly resorting to Article 15(3) as a means to obtain documentary evidence for their clients.

However, the wording of Article 15(3) is unambiguous. The English language version reads: “The controller shall provide a copy of the personal data undergoing processing.” The German language version concurs: “Der Verantwortliche stellt eine Kopie der personenbezogenen Daten, die Gegenstand der Verarbeitung sind, zur Verfügung.” The French version is also congruent: “Le responsable du traitement fournit une copie des données à caractère personnel faisant l’objet d’un traitement.”

The English, German and French versions clearly refer to the provision of a copy of personal data itself. They do not leave room for an interpretation where files or documents containing such information are subject to the right of access. Moreover, the GDPR’s Recital 63 describes clearly the aim of the right of access. Applicants must be informed of the processing of their personal data and be able to verify whether such processing is lawful. Accessing documents is not necessary to achieve that goal. This view is supported by two recent Austrian decisions.

Case law

General

The Austrian Federal Administrative Court (AFAC) corrected an ambiguous decision by the Austrian Data Protection Authority (ADPA), which could have been misread as obliging a bank to provide duplicates of account statements to an applicant. In a later decision, the ADPA differentiated between the contents of an email and the email itself. The ADPA qualified the content of the email as personal data to which the right of access generally applies. Both decisions are final.

AFAC judgment

Although the AFAC did not address the issue of granting access to documents directly, its decision offers some guidance in that regard.¹

In 2017, the plaintiff (a bank client) asked the respondent (the bank) for information concerning his payments to a certain recipient during the previous five years. The respondent agreed to provide duplicates of account statements for a fee of €30 per year (which he was allowed to levy under the applicable Payment Service Regulation). However, the plaintiff was unwilling to pay this fee and requested the data again with explicit reference to his right of access under the (then applicable) Austrian Data Protection Act. The respondent did not comply with the plaintiff’s access request but reiterated its willingness to provide statements of account only on receipt of the fee. The plaintiff considered this a violation of his right of access and filed a complaint with the ADPA.

In its June 2018 decision,² the ADPA ruled that the respondent had infringed the plaintiff’s rights by not complying with his access request. Yet, the decision was ambiguous. It was unclear from the decision whether the respondent was obliged to provide the requested duplicates of account statements or only specific personal data contained in those statements. The respondent appealed to the AFAC.

The AFAC upheld the ADPA’s decision but altered its verdict by clarifying what specific personal data had to be provided to the plaintiff. However, the AFAC limited the plaintiff’s request to data access only and thus denied access to documents. Remarkably, both the ADPA and the AFAC acknowledged that Article 15(3) governs the right of access in general, but may be superseded by more specific legislation addressing the right of access.

ADPA email decision

In this case, the plaintiff requested access to a file in an administrative criminal proceeding.³ The request was denied regarding an email in which the plaintiff was accused of the relevant administrative offence. The administrative authority, a municipality, aimed to protect the accuser’s identity.

The ADPA recognised the right of access to the content of a document (in this case an email), but only as far as it contained an applicant’s personal data. However, in this particular case, the right of access to the personal data of another data subject was denied, as there was no specific reason to grant such access. If a document contains the data of another data subject and the interests of that data subject override those of the applicant, a copy of said document may not be transmitted in its entirety to the applicant (Article 15(4) of the GDPR).

For instance, data controllers must protect their employees’ personal data. Hence, as long as personal data is processed lawfully, controllers are not obliged to provide information on which employee accessed a certain file. However, if an employee accesses documents without authorisation, the employee qualifies as a third party and applicants might have a right to be informed of such access to their personal data.⁴

Note: Austrian law permits the refusal of access requests if trade or business secrets could be jeopardised (Section 4(6) of the Austrian Data Protection Act).⁵

Comment

The GDPR does not grant a right of access to files or documents. However, the content of documents may qualify as personal data. Providing copies of personal data stored within a document will often be the easiest option by redacting superfluous information and providing the document to the applicant. When doing so, data controllers must protect the rights and interests of other data subjects and are permitted and well advised to guard their own trade and business secrets.

In terms of the GDPR, employees are treated as data subjects whose interests need protection. Therefore, employee data might need to be anonymised when transmitting documents. However, in special circumstances (eg, the unauthorised use of personal data), data controllers could be required to inform the applicant of which employee accessed their personal data unlawfully.

This article first appeared on International Law Office.

 

Endnotes

¹ AFAC, 24 May 2019, W258 2205602-1.

² ADPA, 21 June 2018, DSB-D 122.844/0006-DSB/2018.

³ ADPA, 18 April 2019, DSB-D122.913/0001-DSB/2019.

⁴ ADPA, 06 June 2018, DSB-D122.829/0003-DSB/2018.

⁵ ADPA, 18 April 2019, DSB-D122.913/0001-DSB/2019.

By Günther Leissler, Counsel, Janos Böszörmenyi, Attorney at Law, and Maximilian Trautinger, Associate, Schoenherr

BPV Huegel has advised French biotech company Valneva SE on its delisting from the Vienna Stock Exchange.

According to bpv Huegel, the delisting aims to centralize the trading of Valneva’s shares on the Euronext Paris. The company’s delisting was one of the first in Austria under the new delisting regime of Section 38 of the Austrian Stock Exchange Act.

Valneva SE is a biotech company developing and selling vaccines for infectious diseases with major unmet needs. The company has operations in Austria, Sweden, the United Kingdom, France, Canada, and the US.

BPV Huegel`s team was led by Partner Elke Napokoj and included Partner Michaela Pelinka and Associate David Pukel.

Former Wolf Theiss Partner Holger Bielesz has joined Cerha Hempel’s Dispute Resolution practice.

Bielesz specializes in litigation and the resolution of commercial disputes, including in the fields of white collar crime and compliance. According to Cerha Hempel, “his practice areas include, in particular, providing representation to banks and financial institutions and supporting businesses in strategically relevant liability proceedings under civil and corporate law. In this regard, he recently represented a renowned international bank before the European Court of Justice and institutional investors in bail-in proceedings in Austria.”

He joined Wolf Theiss in 2001, then moved to Gleiss Lutz in 2002, before returning to Wolf Theiss two years later, where he stayed. He obtained his Master’s in law and LL.M. at the Universities of Vienna and Freiburg in 1998, the obtained a second LL.M. from the College of Europe in Brussels in 2001.

“We’re delighted that Holger Bielesz, another recognized litigation expert, has decided to join our team,” said Welser, who heads Cerha Hempel’s Contentious Business department. “Consequently, we’re continuing to work towards achieving our strategic goal of being a leading Austrian law firm in every area of corporate law.”

“I regard it as an exceptional challenge,” Bielesz said, “to strengthen the fantastic dispute resolution team at Cerha Hempel headed by Professor Doctor Irene Welser by contributing my many years of litigation experience.“

South African Liesel Beukes is a dual-qualified lawyer and Content Marketing Manager at Schoenherr in Vienna, where she manages the firm’s highly-regarded annual RoadMap publication and assists lawyers across the firm’s 14 offices with marketing, business development, and press relations.

CEELM: Where are you from in South Africa? 

Liesel: Johannesburg, born and bred. 

CEELM: Run us through your background, and how you ended up in your current role with Schoenherr in Vienna. 

Liesel: I studied law at the Rand Afrikaans University (now the University of Johannesburg), went on to do my articles of clerkship as a trainee lawyer for two years, and qualified as an attorney in 2003. After practicing as an attorney for seven years, both in private practice as a corporate/m&a lawyer and in-house at an investment bank, my life changed course completely. My husband at the time was Bulgarian, and I moved to Bulgaria to teach legal English, then a year later I followed him to Hungary where – while he worked with a top US law firm, I worked as a legal recruiter in various CEE markets, and spearheaded the South African desk. In the process, I became acquainted with the best law firms, companies, and lawyers in the region. Traveling broadened my perspective on different legal structures, markets, and trends, and opened my eyes to different firm cultures, payment schemes, etc. 

Fast forward to June 2014: I moved to the Czech Republic and joined Schoenherr in the capacity of a compliance and application specialist, a “frilly” title for doing conflict checks and client identification for anti-money laundering purposes. As a native English speaker and with my legal background, I soon started helping with proofreading and publications and helped with legal submissions in Prague and Vienna on and off. 

I moved to the Schoenherr head office in Vienna nearly three years ago and became the content marketing manager here. My role includes publishing internal primers, more lengthy practice-focused publications, hand-books and guides, and online country comparisons and newsletters. One of my bigger responsibilities is coordinating the Schoenherr Roadmap – a yearly publication highlighting significant legal developments in our markets, created in partnership with a different artist or artists. Externally, I liaise with various legal publishers, and I do a lot of proofreading and editing. I generally assist with some press work, social media, and, here and there, with ad hoc tasks such as helping out with submissions to international directories. Last year I also started putting together and providing legal writing trainings for our lawyers. This is something I really love doing and hope to expand on.   

CEELM: Was it always your goal to work abroad? 

Liesel: Pretty much, yes. When I matriculated, I already had a hankering to leave SA. At that stage I had family in the UK and in New Zealand and I had travelled a fair bit, making me interested in seeing and experiencing more. Some of my friends were taking gap years but most of us jumped straight into our studies. 

Initially, when practicing as a lawyer, I still wanted to go abroad, but my enthusiasm started to wane when I considered having to retrain as a foreign lawyer, and when I realized that the sheer logistics of a move would be mammoth, and the costs involved equally daunting. I eventually got around to doing the conversion exams to become a solicitor of England and Wales and qualified in 2008. I then started putting out feelers in London … and the market crashed. So life carried on in South Africa a while longer.    

CEELM: You have a unique history, as both a dual-qualified lawyer and a non-European in a key marketing role with a highly-regarded CEE firm. How does your background help you in that role?  

Liesel: It is always advantageous to have a legal background when in any support role in a law firm, especially a top-tier firm with many offices. Being a native English speaker and having taught English, coupled with a grasp of corporate law-related matters, helps me to see matters from (perhaps) a different perspective from some people in similar roles. I do not have a marketing background, however – so I rely on my colleagues in other ways and learn from them. I think that being non-European doesn’t necessarily always help in my role – in fact I think that being fluent in German, for example, would ease my work in some respects. All in all, having travelled widely, qualified as a lawyer in two countries, and seen law firms from various positions, both internally and from an external perspective, has certainly made my job simpler.

CEELM: What in particular draws you to a marketing role such as the one you have? 

Liesel: I am genuinely happy working in law. Being in a position where I do what I am good at and enjoy my work is really a fantastic spot to be in. I am proud to work at Schoenherr – which is naturally a bonus when selling the firm. I love language and writing (even outside of the office), so having a job where I get to use these skills, and to market the firm – well, that is gold. Our marketing department is divided into a number of parts, each interconnected yet very different in many ways. I love that I get to work in each division in small ways. My work is interesting, the team is great, and the firm is top class. It has been ages since I practiced law, and there are aspects I miss, but all-in-all I am in the right spot – it’s a no-brainer for me. This is a fantastic job.

CEELM: How would colleagues describe your style? 

Liesel: How on earth do can I answer that without blowing my own horn?! I asked my colleague Linn Hjelseth, our Corporate Communications Manager, and she said “meticulous.”

CEELM: You have lived and worked in a number of CEE markets, and of course you are familiar with the South African market as well. What differences stand out the most between the South African and CEE judicial systems and legal markets? 

Liesel: The most obvious one is that in SA we have a common-law system from the British. Our origins lie in Roman-Dutch law and we have an adversarial trial system without juries, incorporating English procedural law. We also have customary law which is not codified.

In Austria, and I think most if not all of the CEE countries, codified systems dictate the law, whereas we rely on statutes, precedent, and the common law.

CEELM: How about the cultures? What differences strike you as most resonant and significant? 

Liesel: Law firm culture differs from firm to firm even if comparing two boutiques, two magic circle firms, two regional firms, or your mom-and-pop shop down the road. Payment structures affect culture, and internal corporate governance and values affect the culture, as does collegiality, and the kind of management support provided to employees – not only lawyers. The firms’ integrity, gender divide, etc., also play a role in deter-mining firm culture. These I could talk about ad nauseum. But between SA and here, it’s much the same, taking into consideration all the bits and bobs mentioned above. 

In general, outside of a work context, culturally South Africans are very open, very friendly. I have found people in most of the countries I have lived and worked in in CEE to be more reserved initially. This isn’t bad, it was just unfamiliar to me, and can be misinterpreted as rudeness. Of course, at the end of the day we are all human, and once you crack the exterior, we aren’t all that different. Our histories and cultures shape us, but maybe it is because I was raised to be very liberal and open that I go into situations without clinging to my understanding of life or having particular expectations of how people “should” be. 

CEELM: How often do you get home? Do you have any plans to move back to South Africa? 

Liesel: Over the past nine years I have been home at least once a year, but now that my parents have left South Africa to join my sister in Australia, I won’t be traveling back much. The political, economic, and socio-economic climate is not ideal, and my family and many friends have been affected by crime to the point where I don’t see myself moving back.    

CEELM: Outside of Austria, which CEE country do you enjoy visiting the most, and why? 

Liesel: That is a tough one. Probably Hungary or the Czech Republic. I still have so many friends in Budapest and visit there every other month. I love the ruin pubs and love cycling along the Danube. Prague was also home for some time, so I have a soft spot for that magical city. 

CEELM: What’s your favorite place to take visitors in Vienna?  

Liesel: Oh, there are so many! Naschmarkt for a good Turkish breakfast or brunch, followed by the Albertina, is a favorite. In summer there are great vineyards barely outside the city, and all year long there are fantastic restaurants and cafes around every corner. I love Miznon, which has delicious Israeli cuisine and is in the heart of Vienna – I always take guests there for a quick informal bite to eat. I have to pinch myself when I think that I actually live in this incredible city. It is beautiful and is slowly starting to feel like home. When I look back at my life, I can only smile. The trajectory has been so different from what I had planned or could have expected – but it has taken me to an infinitely better place in so many respects.

This Article was originally published in Issue 6.10 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

Binder Groesswang and Schoenherr have advised Austria’s Wiesenthal AG and Wiesenthal Holding on the sale of Wiesenthal & Co GmbH, including Wiesenthal Handel und Service GmbH, to Switzerland’s Mercedes Benz Automobil AG. Switzerland’s Frotz Riedl law firm and CMS Vienna advised the buyers on the transaction, which is expected to close in June 2020. Financial details were not disclosed.

Wiesenthal AG is an Austrian family-owned car trading company that specializes in the sale and after-sales support of new and used cars and vans as an authorized sales and service partner for the Mercedes-Benz, Smart, and Mercedes-AMG brands. 

CMS describes Mercedes Benz Automobil AG as the “Swiss market leader in Mercedes-Benz retail,” and reports that the company is “adopting all 538 employees and successfully continuing its international expansion policy with this purchase.”

The Binder Groesswang team was led by Managing Partner Michael Kutschera and included Partner Markus Uitz, Senior Associates Philipp Kapl and Christoph Baumgartner, and Associate Alexander Scharkosi.

The Schoenherr team was led by Partner Robert Bachner.

The Frotz Riedl team was led by Partner Georg Riedl.

The CMS Vienna team included Partners Alexander Rakosi, Johannes Hysek, Jens Winter, Robert Keisler, Dieter Zandler, and Stefan Brunnschweiler, Attorney at Law Mariella Kapoun, and Associates Marie-Christine Lidl, Dominik Stella, and Vanessa Horacek.

Dorda has advised DLH Real Estate Austria, a company owned by the Zech Group, on the sale of two logistics properties and the forward sale of two additional logistics properties to Germany’s Deka Immobilien. The buyers were advised by Schoenherr.

The Gamma 1 and Gamma 2 logistics properties acquired by Deka Immobilien are located on the Industrial Campus Vienna East, near the Vienna Schwechat airport. The Alpha 2 and Gamma 3 properties on the same campus which make up the forward deal are expected to be completed by the middle of next year and will have a rentable area of over 41,000 square meters with 131 parking spaces. According to Dorda, once completed, the Industrial Campus Vienna East will cover more than 120,000 square meters and will be the largest logistics campus in Austria.

Dorda’s team consisted of Partner Stefan Artner and Lawyer Marie-Luise Pugl.

Schoenherr’s team consisted of Managing Partner Michael Lagler and Counsel Ayla Ilicali.