•• •••
l)1s
:efl RES0IlUTION
'Q\'b
INSIDER
TO OUR READERS
Welcome to the 11th edition of the DR!nsider, the quarterly Newsletter of the Wolf Theiss
Disputes team, in which we provide an overview of recent developments in CEE/SEE.
July 20· 8
AUTHORS
We present a selection of Austrian Supreme Court case law focusing on effects of a
private joinder on limitation penods. the balance between an individual's personality
right and medical research interests and also the question whether the public prosecutor
may order the preservation of outsourced data in the course of a house search.
ANDREEA ANTON
.Assoclate. WOLF THEISS Bucharest
CLAUDIA BREW!
.Assoclate. WOLF THEISS Vienna
Since the adoption of the controversial Polish Act on Claims for Redress of Injury Caused
by Violation of Competition Law, legal practitioners are discussing if this new legal
remedy will be abused by parties in order to obtain confidential information.
DAMIAN MAJDA
.Assoclate. WOLF THEISS War'!iJ.W
PATRICK MITILB6c:K
With regard to EU law, the ECJ has issued an interesting judgment in which it is
interpreting the ob.ective of the EU Directive relating to self-employed commercial agents
saying that an agent has a right to indemnity or compensation even if the contract has
been terminated during the trial period.
.Assoclate. WOLF THEISS Vienna
LUCIA MOC'IBOB
.Assoclate. WOLF THEISS Z.Ogreb
EWA PARCZEWSK.A
.Assoclate. WOLF THEISS War'!JJ.W
We wish you a really nice and relaxing summer.
FLORIAN PECHHACKER
Best regards,
Assoclate. WOLF THEISS Vienna
VALERIE HOHENBERG
FLORIAN PECHHACKER
MARIO VROOLJAK.
Partner
.Assoclate. WOLF THEISS ZOgreb
Associate
PA1RICK WINTER
Legal Trainee. WOLF THEJSS Vienna
ANDREEA 'N AC
CARTEL
LITIGATION
and of the Council of 26 November 2014.
This new rule is particularly unusual in
Polish civil procedure and has prompted
discussion among legal practitioners and
scholars because the structure of the new
procedure is close to the concepis of
Seruor Associate. WOLF THEJSS Bucharest
DISCLOSURE OF UNFAVOURABLE
EVIDENCE - NEW RULES
GOVERNING ACTIONS FOR
DAMAGES FOR COMPETITION
LAW INFRINGEMENT
discovery or disclosure in common law
junsdictions.
What is so controversial?
The Act on Claims for Redress of Injury
Caused by Violation of Competition Law
that entered into force in Poland in 2017:
Under the Polish Code on Civil Procedure a
party can request the court to disclose
evidence which is in the other's party
possession. In order to do so the claiming
party needs to prove that the evidence that
The new Act was imposed by Direcl!ve
20 I 4/ 104/EU of the European Parliament
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is being requested to be disclosed has
signilicant value for the court proceeding
Additionally, the clmming party has to
precisely name the evidence that 1S
requested to be disclosed. However, in
antitrust cases, protection of a party's rights
to clalm damages was expanded by the
possibility of applying for d!Sclosure of
evidence. This may also happen in a
situation in which the plalnllff presumes that
certain evidence exists. This means that the
opposing party may be forced to submit
evidence that is counteractive to its own
statements.
LITIGATION
CHANGES TO PROVISIONS ON
PUBLIC PROCUREMENT DISPUTES
On 4 June 2018, the Romanian Official
Gazette published Government Emergency
Ordinance no. 45/2018 ("GEO 45/2018")
bringing a series of changes with regard to
the current public procurement regulation.
Pros and cons?
Among the major amendments brought to
the public procurement legislation there are
certain siqnincon t changes made to the
provisions regarding the conduct of disputes
in this area.
The explanatory memorandum issued by
the Romanian Government states that such
changes were implemented in order to
reduce the number of complaints initiated
by the participants to public procurement
procedures, which may hinder
the
execution of the contract.
The restructuring of challenge proceedings
Before the new law entered into force, it was
extremely difficult for a plaintiJf to prove its
claims The solution introduced by the new
Act alms to create a mechanism which
enables a plaintiff to obtain relevant
evidence. However, there is a risk that the
new procedure may be abused by parties
in order to obtain confidential information,
such as trade secrets, hsts of clients, or other
information that could provide a basis for
additional litigation.
The Romanian Government simplified the
challenge procedure by removing the mitial
preliminary notification that was sent to the
contracting authority. Hence, the National
Council for Solving Complaints ("NCSC") and
the national courts will be able to issue
Everything in the "Court's hands"
decisions settling complaints against deeds
issued in public procurement procedures
more quickly.
Furthermore. GEO 45/2018 brings changes
with regard to the expenence of members of
the NCSC. namely that at least one of those
solvmg a complaint shall have at least rune
(9) years' experience in the legal field.
New conditions for submitting complaints
The court may decide to limit the scope of
information that is able to be disclosed, to
deny the d!Sclosure of a specilic piece of
evidence or to impose a court fee on a party
filing a motion in bad faith. When deciding
whether a certain motion should be
accepted, the courts apply the rule of
proportionality. Tms means that the court
establishes whether the information that is
going to be obtained is valuable enough to
be disclosed. Additionally, on the bcsis of
the same rule, the court decides whether the
disclosure of evidence is not too expensive
or time-consuming.
In order to reduce the number of complaints
inibated by participants
to public
It will be necessary to observe the future
procurement procedures, GEO 45/2018
established several obligations
for
decisions of Polish courts as they will have
significant impact on the future scope of
clalmants, namely
disclosure of evidence.
i. to pay a guarantee for any complaint
(which can reach up to EUR 195.000).
includmg those submitted directly to
the competent court; and
EWA PARCZEWSKA
Associate. WOLF THEISS Office
ewa parczewska@wolfthe1SS com
an increase in the stamp fees.
ti
DAMIAN MAJDA
Associate. WOLF THEISS Office
With regard to the amount of the guarantee.
the new regulation states that it must be 2%
of the estimated value of the contract to be
dorrucn mcjccwwottthess com
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2
awarded (for ongoing proceedmgs) or of the
awarded contract's value.
The 2% of the estimated value of the
framework agreement will be established
based upon the value of the highest
subsequent value.
An add!tlonal stamp fee shali be paid for
disputes involving a damage claim or
disputes resulting from the performance,
annulment or
RBS Responsible Business Solutions GmbH
Hegegasse 13, 1010Wen
T +43 (0) 8CXJ 00 20 46
termination of public
W www.secureveal.com
HIGHLIGHTS FROM
THE AUSTRIAN
SUPREME COURT
procurement contracts, including public
works contracts based on F!DlC Conditions
of Contract.
An 'illegally" bad golf handicap
CRIMINAL LAW
The stamp fees were increased sigrnficantly,
to 2% of the estimated value of the contract
that surpasses RON 100,000,000 or 1% if the
A goU player hits a hiker with his tee
shot resulting in claims against the
goUer as well as the owner of the goU
contract's value is under such ornount.
Time limits for claims submitted. to the court
The previous public procurement regulation
PRESERVATION ORDER FOR
OUTSOURCED DATA - MAY THE
PUBLIC PROSECUTOR ORDER THE
PRESERVATION OF OUTSOURCED
DATA IN THE COURSE OF A HOUSE
SEARCH?
course
Right before the fatal swmg the goUer
asked h1s victim-to-be 1f there me any
more lukers on the trail. When the
was not in accordance with administrative
law; which provided for a six (6) months
period
for claims
regarding public
procurement contracts.
Due to the complexity of white collar crime
nowadays, the public prosecutor requires a
lot of information in order to understand and
To prevent misinterpretations the GEO
45/2018 provides:
prosecute the case. In many cases the
prosecutor orders the investigative measure
of a house secrrch to enable the preservahon
1. a 1-year hmitation period for claims for
damages caused by public awarding
proceedmgs; and
of necessary information.
hiker negated the question. the golfer
returned to the tee cmd assumed that
the luker had gone in the mecmtime.
Unfortunately the following swmg
was a total disaster and directed the
l::x:Ill nght into necrrby bushes, behind
whJ.ch the luker was still present. The
injured luker consequently rcnsed
dcnnage claims against the golfer
cmd the owner of the golf club.
According to Article 119 para 1 Austrian
Criminal Procedure Code (" ACPC") the order
of a house semch is inter alia admissible il,
ti. a 3-yem limitation period for claims
resulted
from the performance,
due to certain facts, it can be assumed that
annulment or termination of public
procurement contracts,
which will run in accordance with
objects that have to be secured or
evaluated are located at the premises.
Apart from the prosecutor issuing the order
for a house semch - which has to be
article 7 (6) of Law no. 554/2004 on
administrative law
The court of first instance dismissed
the claun In favour of the club
operator, the court decided that the
warning signs placed cround the golf
course were more them enough to
fulfil the obhgation regarding safety
precautions. Regarding the player,
the court found that he took all
gran led by the court - the prosecutor has to
issue an order to preserve the objects he or
she aims to secure.
The changes are applicable to public
procurement proceedings and challenges
that started after the entry into force of GEO
45/2018, respectively after 4 June 2018.
In general a preservation order according to
precautions for a safe swmg. The
failed attempt was to be seen as an
"inevitable event'.
Article 109 para 1 a ACPC covers the
preliminary control over an object for
ANDREEA zv s«:
reasons of evidence, preservation of private
Senior Associate
claims or pecuniary measures (Article 11 O
andreea.zvac@wolfthe1SS com
The court of second instance then
flipped the script; finding that the golf
player should have checked and not
merely speculate about
ANDREEA ANTON
Associate
andreea anton@wolfthe1SS com
para 1 ACPC). As documents are mostly
stored electromcally Con laptops, mobile
phones, USB sticks etc.). Article 111 para 2
ACPC states that following a preservation
order any person is obliged to provide
the
whereabouts of the hiker This
therefore is to be seen as cmeless
behaviour. Regmding the golf club
itself,
the wmning signs were
access to informahon that is stored on a
dismissed as an appropriate way of
preventing hmm
data storage medium. The preservation
order generaliy allows the prosecutor to
secure the storage medium itself as the
Contlnued on next page ..
object - including of course the information
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stored on it. The question is whether the
preservation order covers access
to
three yems of the knowledge of the
damage and the damaging pmty
(limitation period).
informabon that is stored on a server or
cloud storage network by usmg encryptmg
softwme or the login data accessible on the
preserved storage urnt.
According to the Austrian Cnminal
Procedure Code. the private joinder has
to be in written form.
The legislative materials to Article 111 ACPC
explicitly state that information stored on a
server or a cloud network can be subject to
There has to be a connection between
the criminal chmge and the damages
claim. The claim must be based on the
a preservation order.
same facts and circumstcnces. however,
However. it has to be noted that the
preservation according to Article 109 et
seqq ACPC is not a secret mvestlgative
measure Therefore the preservation of
outsourced data is only admissible if the
person authorized to access the data is
informed and is given the chance to hand
over a copy of the relevant information
upfront (Article
it does not need to be based on the
smne
legal grounds. The
legal
classification and sentence of the
criminal court is thus not of importance
for subsequent civil proceedings.
continued
The Austrian Supreme Court agreed
with the decision of the second
The subsequent civil claim - in case the
private
joinder has not been decided
111 pma 2 ACPC).
instance regcnding the golf player.
He violated his duty of care.
Regcrrding the golf course operator,
the Supreme Court was of a different
opinion. "The general rules regarding
upon - has to be filed at the civil court
within a reasonable time after the
judgment of the crimmal court has been
Furthermore the access for the prosecutor is
only permissible once; considering that
rendered
preservation is not a constant surveillance
safety obligations mustn't be
investigative measure.
PATRICK MITTLBOCK
Moreover. the private joinder and the
civil cknm must both address the smne
financial disadvantage.
Associate
overextended", the judge stated. The
endangerment of hikers caused by
the nature and pace of golf balls is in
accordance with the general
expenence of llfe
Latest Supreme Court decision (OGH IO
rx:rlnck.m1ttlboeck@wolftheiss com
Ob 45/l 7s, 14 November 2017)
To prevent such an incident an
operator would need to erect barners
around the courses. In the judge's
view this would surpass the hm.it of
In its latest decision on private party
joinders. the Supreme Court had to decide
THE PRIVATE PARTY'S JOINDER IN on the validity of a joinder. and thus its
recson. (1 Ob 4/18x)
CRIMINAL PROCEEDINGS AND ITS interruption effect for the civil proceeding, in
EFFECTS ON LIMITATION PERIODS a case with 7.880 Claimants of which only
Patrick Winter
UNDER CIVIL LAW
one name has been explicitly mentioned in
the written submission. With regmd to the
rest. only reference was made to their
A private party's joinder in Austrian
criminal proceedings can affect the lawful
names and claimed cmounts on an
interruption of the period of limitation in
civil proceedings. However, the private
party's
joinder must
fulfill certain
additionally enclosed CD. The Claimant in
the respective Supreme Court case was one
of those with only his/her name on the CD.
requirements.
The main question that mose was, whether
In general, the joinder of a private pmty in
criminal proceedings can cause an
interruption of the period of limitation to the
effect that no claim has to be filed at the
civil court yet. This gwes the injured pmty
the possibility to lower his/her cost risk as
well as simplifying the decision to file a
claim based on the criminal proceedings
and the Judgment of the criminal court.
a mere reference to an enclosed CD
replaces the required written subrrusston of
the private jomder and if this serves as
sufficient
individualizabon
and
concretization The court's response was as
follows.
The private joinder was not rejected in the
crimmal proceedings
In addition. the
However. certain criteria have to be fulfilled:
names and claimed amounts of damages
have been put on paper by the Prosecution
and
have
subsequently
been
The damages clmm in the joinder has to
be sufficiently individualized (liable
person) and concretised
(claimed
registered/taken into the official criminal
file. Hence. the requirement of written form
has been fulfilled by this act. As a result. the
amount) by the private party within
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4
private
joinder did cause an effective
interruption of the limitation period.
deemed to last tor an indefinite period. Each
party had the right to terminate during the
course of the trial period, subject to giving
15 days' notice during the first month and
one month's notice thereafter.
Summarized. it should already be sufficient
in future cases to argue a sufficient
individualization.
concretization and
substantiation of the private jomder in an
exhibit to a subrrussion as long as this is
written on paper and becomes part of the
official criminal tile.
French courts ruled on the bosis of French
case law that there IS, by way of exception.
no right
to compensation where a
CLAUDIA BREW!
Associate
claud10 brewisswoutnees com
commercial agency contract is terminated
during the trial period, especially because
the agency contract has not yet been
definitively concluded durmg the trial
period.
COMMERCIAL LAW
Since, inter alia, the Directive does not refer
to any trial penod the French Court of
Cassation asked whether Article 17 of the
Directive also applies where termination of
the commercial agency contract occurs
during a trial period.
THE AGENT'S INDEMNITY /
COMPENSATION CLAIM VS. "THE
PRINCIPAL'S TRIAL PERIOD"
The ECJ came in particular to the following
conclusions:
Article 17 of Council Directive 86/653/EEC
of 18 December 1986 on the coordination of
the laws of the Member Slates relating to
self-employed commercial agents
The Directive makes no reference to the
concept of a
'trial period'; therefore, it
•• •••
(as
must be considered that such a provision
is not as such prohibited by the
Directive.
amended from time to time, '1he Directive")
stipulating the indemnity or compensation
of a commercial agent after the termination
of an agency contract is a good example
The termination during the specific tnal
how harmonization is achieved between
the Member Slates of the European Union.
period constitutes a termination within
the meaning of Article I 7 (I) and ( 3) of
the Drrective; the interpretation that the
agency contract has not yet been
defmitively concluded during the trial
period has no basis in the Drrective
In its evaluation report dated 16 July 2015,
the European Commission concluded that
the "Directive seems to have been effective
in achieving its objective to facilitate cross
border operations
in commercial
representation" and "it ts recommended that
the Duective is maintained in its current
form"
The indemnity and compensation
regimes laid down by the Directive are
not intended to penalize termination but
to indemnify /compensate the Agent for
his/her services in the past The Agent's
claims cannot be denied
if the
Article 17 of the Directive is the Directive's
best known provision and rts interpretation
(respectively the interpretation of
conditions set out in Article 17(2) and (3)
are satisfied.
its
transposition into national law) is subject to
numerous disputes before national courts
and the ECJ.
Furthermore. the Directive shall protect
the Agent In the light of the arm of the
Directive any mterpretation of Article 17
which may prove to be detrimental to
Recently, the ECJ (C-645/16) dealt with a
request for a preliminary ruling under
Article 267 TFEU from the Cour de cassation
(Court of Cassation, France).
the cornrnercicl agent is not perrrnssible.
The interpretation of the French courts
that there is no right to compensation in
case the contract is terminated during
the tnal period is therefore contrary to
the objective of the Directive.
The respective agency contract behind the
dispute stipulated that the contract was
entered into for a trial period of 12 months,
at the end of which the contract would be
As a result, the ECJ ruled that the Agent
may also be entitled to indemnity or
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compensation according to Article
1 7
flonan [email protected] com
The Constitutional Court also accepted the
Government's view that Lex Agrokor was
needed to prevent an escalation of
Agrokor's problems. Namely, it accepted the
Government's position that the existing legal
framework containing pre-bankruptcy and
bankruptcy proceedmgs was, by virtue of its
legal nature, dynamics and duration,
inadequate and ineffective and thus
inapplicable in this case. Consequently, the
Constitutional Court considered that in such
circumstances the adoption of Lex Agrokor
was necessary to attain the legitimate goal.
paragraphs 2 and 3 of the Directive in the
event, that the contract is terminated during
a trial period.
FLORIAN PECHHACKER
Associate
CONSTITUTIONAL
LAW
With this ruling the Constitutional Court
cleared the legal avenue for completion of
the state-administered debt restructuring of
the food proces.sing and production gjant
Agrokor. The only question that now
CROATIAN CONSTITUTIONAL
COURT RULES ON LEX AGROKOR
remains unanswered is whether all the
stakeholders will accept the settlement that
has been offered to them.
On 2 May 2018 the Croatian Constitutional
Court ("Constitutional Court") upheld the
Law on Extraordinary Administration
Procedure for Companies of Systematic
Importance for Croatia, better known as
LUCIA MOCIBOB
"Lex Agrokor".
Associate
nxao.mccrtobewonthees com
MARIO VRDOWAK
Associate
With this decision, the court rejected twelve
proposals requesting a review of Lex
Agrokor and its conformity with the
Constitution. The Constitutional Court's
mono vrdolJ(lk@wol!thelSS com
decision was not unanimous Three out of
the full panel of thirteen judges dissen led:
expressing their opinion that a signilicant
number of Lex Agrokor provisions were not
in line with the Croatian Constitution.
FOCUS: LIFE
SCIENCES &
In its decision. the Constitutional Court
stated that the provisions of Lex Agrokor did
not constitute a violation of ownership rights
or entrepreneurial and market freedoms. In
HEALTHCARE
DISPUTE OVER THE OWNERSHIP OF
OUR MOST IMPORTANT ORGAN
THE HUMAN BRAIN
its explanation, the Constitutional Court
stated that entrepreneurial and market
freedoms are not absolute, but rather that
they can be limited by law provided that
there is a legitimate goal and that the
limitahon is proportional to the goal to be
The Austrian Supreme Court had to deal
with a rather rare dispute recentiy over the
balance between an
achieved. As to the legitimate goal, the
Constitutional
Court
accepted
the
individual's
personality right and medical research
interests (OGH 8 Ob 56/17v, 23 March
2018),
The dispute arose when a husband
demanded the handover of his dead wife's
brain from an Austrian university. Due to
suspected Creutzfeldt-Jakob Disease ("CJD").
an autopsy had taken place confirming the
infection. The forensic doctors at the
Government's view that the adoption of Lex
Agrokor was aimed at, among others,
preserving the stability and viability of
Croatia's economy, protecting and
preventing the bankruptcy of various
involved market parhcipants and
preventing the loss of jobs. Ultimately, the
Constitutional Court determined that the
limitahons envisaged by Lex Agrokor are
proportional to the legitimate goal.
respective university then extracted her
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6
brain for scientific and preventative reasons
according to the following rules
junsprudence on the extent to which a
university's right to follow a research
assignment exists.
In Austria CJD is legally classified as a
notifiable. communicable disease under
Section I para 1 no 1 of the Austrian Law on
Epiderrucs. Moreover. under the authority of
the Austrian Ministry of Health a reference
center
The "final" judgment of the Supreme Court
for prion dlseases has been
established since 1990/91 ill which brains of
persons who died as a result of CJD are
preserved for 30 years and scien tifically
studied.
In its revision presented to the Supreme
Court the Defendant, the university, claimed
for the first time that the legal proceedings
in iron t of the national courts were
inadmissible as the autopsy as well as the
government order on the preservation of the
brain are state odmirnstrotion issues. Thus.
the administrative courts are competent
LEGAL NOTICE
In this case, as the husband was the sole
heir, he based his surrender claim on the
exercise of his wife's lasting personality
rights. The university, however. argued that
it had the right to preserve the human
organ to serve public interest and in
accordance with the Ausinan Law on
Epidemics as well as on the Ministry's order.
The Supreme Court came to the conclusion
that the university in fact did act as a
WOLF THEISS Rechtsanw6lte GmbH & Co KG
Attorneys at Law, Schubertnng 6, 1010 Wien
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Commercial Registration Number. FN 403377 b,
Commercial Registratlon Court Commercial
Court Vienna,
for prion diseases in the heal th care sector,
and hence, for the state adirifnistrahon.
However, the court also found that the
Claimant may file a request for burial by
which he would have a legal remedy for
claiming the termination of the autopsy and
preservation in administrative proceedings.
The woman herself had never decided what
should happen to her body after her death.
With respect to organs. an opt-out system
applies to organ donation ill Austria.
However. this case could not be classified as
a donation
legal advice and services provided by lawyers
In line with the above, the Supreme Court
found the former proceedings in front of the
national courts to be null and finally
dismissed the original claim.
legal knowledge and services provided
by Wolf TheJSS
The findings of the instances
CLAUDIA BREW!
The court of first mstonce decided in favour
of the Clarmant due to his wife's missing
Associate
claud.J.a brewieswolrtneiss com
consent and his present right to exercise her
lasting personality rights.
Followinq and affirming the first court's
decision. the second court nevertheless
agreed to a revision by the Austrian
Supreme Court due to the
lack of
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