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Mar 08, 2017

On Feb. 28, 2017 the Austrian Federal Ministy of Justice has published its draft for the implementation of the EU Package Travel Directive 2015/2302. Instead of the current provsions related to package travel in the Consumer Protection Act, there will be a separate Package Travel Act (Pauschalreisegesetz - PRG). This seems reasonable as the protection provided by the Directive is not limited to consumers only. On the other hand, it will lead to further fragementation of civil law and therefore it would have been better to include the new provsions in the Austrian Civil Code (ABGB).

The proposed PRG will contain provisions on information duties and obligatory contetn of the contract which are currently regulated by the Commercial Code. Although the new Act is of civil law nature, it provides for administrative fines if the organiser fails to comply with these duties.

The PRG introduces the concept of "travel arrangements" which fall somewhere in between a package and a sale of single services.

To a large extent, the proposed  implementation follwows  the wording of the Directive and therefore shows the same shortcomings like for instance the unfortunate defintion of  "unavoidable and extraordinary circumstances" which play a key role for liability and the right of withdrawal. Depending on the interpretation of the new wording, the organiser's liabilty may change from a fault liability with reversed burden of proof to strict liability.

The draft does n ot cover insolvency protection which will be subject to separate legislation.

The draft can be found in German at https://www.ris.bka.gv.at/Dokumente/RegV/REGV_COO_2026_100_2_1335456/REGV_COO_2026_100_2_1335456.pdf and the explanatory remarks are available at https://www.ris.bka.gv.at/Dokumente/RegV/REGV_COO_2026_100_2_1335456/COO_2026_100_2_1347174.pdf

Feb 17, 2017

Upon request for preliminary ruling lodged by the Commercial Court Vienna, the CJEU held that the communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee. Although the distribution of a signal by means of TV and radio sets installed in hotel rooms constituted an additional service which had an influence on the hotel’s standing and, therefore, on the price of rooms, it could not be considered that that additional service was offered in a place accessible to the public against payment of an entrance fee. Consequently, the communication to the public of TV and radio broadcasts by means of TV and radio sets installed in hotel rooms does not fall within the scope of the exclusive right of broadcasting organisations provided for in Article 8(3) of Directive 2006/115.

CJEU Feb. 16, 2017, C‑641/15 - Verwertungsgesellschaft Rundfunk

Sep 09, 2016

In judgement C-160/15 of Sep 8, 2016, the European Court of Justice held that hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, are unlawful unless provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website. If they are provided with the pursuit of financial gain knowledge of  the illegal nature of the publication must be presumed.

In his opinion, the Attorney General had argued that such hyperlinks would generally not constitute an act of ‘communication to the public’ regardless of any knowledge of an illegal nature of the publication on the other website.

The Court of Justice, however,  took a much more restrictve approach in favour of the right holders.

Full text of the judgment and the opinion of the Advocate General availbale at: http://curia.europa.eu/juris/liste.jsf?pro=&lgrec=de&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=C-160%252F15&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&jge=&for=&cid=909693

Aug 05, 2016

In an opinion delivered on July 28, 2016 in case C-315/15, CJEU Advocate General Bot has concluded that bird strikes do not fall within the extraordinary circumstances defence currently available to air carriers according to Article 5 para 3 of Reg. (EC) 261/2004. In the Advocate General's opinion, such incidents are inherent in the normal exercise of the activity of a carrier and therefore not 'extraordinary'. Although an opinion of an Advocate Genrral is not binding to the Court but only advisory in nature, the judges in most cases follow the recommedations expressed therein. The CJEU judgement is to be expedcted within the next months.

Mar 25, 2011

In his opinion delivered on 24. March, 2011, in the last pending "Keyword Advertising" case before the ECJ (C-323/09 - Interflora), Advocate General Jääskinen suggested that the conditions of permissibility of the use of the trade mark as "Keyword" must primarily be evaluated on the basis of its visible outcome and was thus linked o the contents of the ad displayed in the sponsored link. If the sponsored link did not itself include the sign or any similar sign, even a mark with a reputation would not be diluted (by weakening of its meaning as denoting goods or services of a specific abstract commercial origin) nor would such choice of keywords in search engine advertising amount to free-riding. In the case of identical or similar goods or services, the purpose of presenting a commercial alternative to the goods or services protected by a trade mark with a reputation should count as due cause in the context of modern marketing relying on keyword advertising on the internet.

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