NEWS
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Restructuring and Insolvency Directive Implementation Act
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The aim of the new Restructuring and Insolvency Directive Implementation Act, RIRL-UG for short, is to rescue companies that get into financial difficulties but are not yet insolvent and to relieve honest individual entrepreneurs of their debts. Due to the Covid pandemic, the new insolvency directive is also available to consumers for debt relief.
The new insolvency directive will come into force on July 17, 2021, and thus also implement the EU directive in Austria, which is intended to facilitate and harmonize the Europe-wide restructuring of companies.
According to the new RIRL, the period after which insolvent companies are to be discharged from their debts may not exceed three years. In addition to the current five-year levy procedure, a short levy procedure (repayment plan) is to be introduced, in which the standard of probity is higher than under the current legal situation. Furthermore, an out-of-court solution, a so-called simplified procedure with the consent of the creditors , is available.
It is now necessary to form creditor classes, which include in particular creditors with secured claims (particularly liens), creditors with unsecured claims and creditors in need of protection, as well as creditors with lower claims. Only SMEs are not obliged to form creditor classes. The approval of these creditors is necessary for a restructuring plan. If the required majorities are not reached in the respective classes, a cross-class cram-down is still possible, whereby a restructuring plan is nevertheless possible.
In the future, the restructuring process is to remain secret as far as possible and its effects are to be limited to those affected. A publication in the edict file will only be made if the debtor so requests. An exception to this is the European restructuring process, as this must be published in the edict file.
Warranty law New July 2021
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The directive on certain contractual aspects of digital content and digital services (DIRL, Directive (EU) 2019/770) and the directive on certain contractual aspects of the sale of goods (WKRL, Directive (EU) 2019/771) are to be implemented by national implement laws. A reform of the warranty law for consumer transactions was therefore also necessary in Austria.
Both directives relate to consumer transactions, i.e. contracts between companies and private individuals, and primarily include sales contracts for goods, i.e. movable objects, including goods that have yet to be manufactured. "Goods with digital elements" are specifically mentioned. This means, for example, "smart goods" such as smartphones or an "intelligent" fitness watch.
For the first time, the DIRL creates EU warranty regulations for contracts for the provision of digital content (e.g. software, music and audio files, e-books) and digital services (e.g. cloud services, social media), also against the provision of personal data, without that a fee in the conventional sense must be paid for this. These should also fall under the warranty law. If you have an account with a free video streaming platform, for example, you can rely on the warranty in the event of a defect. If the problem is not resolved, consumers can request that their data not be used further.
An update obligation has also been included for digital services and digital elements of goods. In the future, entrepreneurs will be obliged to provide free software updates. In the case of digital services such as cloud services, continuous provision must be guaranteed over the entire contract period.
A significant innovation is also the seller's obligation to bear the "assembly and disassembly costs" of goods that have been assembled or installed as intended.
The seller is responsible for non-conformities of the goods, which exist at the time of delivery and become apparent within 2 years after delivery. Basically, the existing basic concept was retained. The period until the so-called reversal of the burden of proof to the detriment of consumers occurs is doubled with the new law: from 6 to 12 months. The entrepreneur now has to prove that the defect only appeared later, which is a much better starting point for consumers
WEG amendment 2022
The Home Ownership Act (WEG) has been changed, some new rules have been in effect since January 1st, others will come into force on July 1st, 2022.
The amendment involves selective changes to the Home Ownership Act 2002 and is not a major structural reform.
The amendment mainly includes the following measures:
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Innovations in the right of change for the apartment owner (§ 16 WEG 2002)
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The administrator's obligation to provide information about the data required to communicate with the other apartment owners (Section 20 (8) WEG 2002)
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Facilitation of decision-making (§ 24 Para. 4 WEG 2002)
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Minimum allocation to the reserve (§ 31 Para. 1 WEG 2002)
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Charging stations for electric vehicles and innovations in energy technology
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Innovations in the change right of the apartment owner
A condominium owner who wants to change his condominium property in such a way that the legitimate interests of other condominium owners could be adversely affected must obtain the consent of all other owners. In practice, however, this is usually very difficult.
A major innovation in the WEG amendment relates to the resolution of the community of owners (§ 24). First of all, it should be noted that these changes will not come into effect until July 1, 2022.
It is currently still the case that a majority of all co-owners (measured by the co-ownership shares) is required for a valid decision by the community of owners. Those owners who do not even take part in the vote are also counted; a vote not cast counts as "contra".
From July 2022, a majority decision will also be taken if two thirds of the votes cast (calculated according to co-ownership shares) are in favor. However, this majority must represent at least one third of all co-ownership shares. Accordingly, it will therefore be possible in the future under certain constellations for a minority of at least 33.34 percent of the co-ownership shares to bring about a valid resolution.
In the future, owner meetings can also be held online via video conference.
2. Dealing with contact data
Another innovation concerns the handling of contact details of the individual apartment owners. In the future, the property management must provide information about the names and delivery addresses of the other owners if an owner requests this; However, only for purposes that are "related to the exercise of rights and design options that result from home ownership". However, e-mail addresses are considered to be particularly susceptible to misuse; they may only be passed on if the apartment owner concerned expressly consents to this.
3. Consent
For the changes mentioned in the amended § 16 WEG 2022, a fictional consent then also applies. Specifically, this means that the consent of an apartment owner is deemed to have been given if he does not object to the planned change within a period of two months after receipt of the notification. So those who remain silent agree.
However: "An apartment owner does not have to tolerate a significant and permanent impairment of his apartment property or accessory object even if he has failed to object," it says in the Apartment Ownership Act since January 1st.
It should also be noted that the owner who is willing to make changes must also explicitly state the legal consequences of not objecting when notifying the other owners of his change request. This means that it must be specifically pointed out that not answering is tantamount to consent.
The following measures will be favored by the "consent fiction". These are:
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The barrier-free design of a residential property or general parts of the property,
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the installation of a device for slow charging of an electrically powered vehicle,
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the installation of a solar system on a condominium constructed as a terraced house or individual building,
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the installation of devices for shading a condominium that blend harmoniously with the appearance of the house and
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the installation of burglar-proof doors.
4. Innovations in energy technology
The attempt to reduce the energy requirement for buildings is also included in the new amendment. It is reflected in the new provision on the formation of reserves. The WEG amendment 2022 provides for a minimum endowment of the reserve under the keyword "decarbonization" and by naming expenses for thermal renovation and energy-related improvements. This new regulation will also not come into force until July 2022.
It is no longer required, as was previously the case, merely to form an "appropriate" reserve, but rather a certain amount as a minimum endowment: in future, a reserve of 90 cents per square meter of usable area of the entire facility must be formed monthly.
5. Electric vehicle charging stations
The switch to electric vehicles should also be promoted. Community systems should be given preference over individual charging stations. The individual charging station must not stand in the way of a later joint charging station and there is an obligation to refrain from using your individual charging station when setting up a joint charging station. However, in order not to hinder progress in detail, the obligation to cease and desist should come into effect at the earliest five years after the installation of the individual charging station. Up to this point in time, the use of the individual charging station is possible despite the joint deposit that has been set up in the meantime.