Read #02/2020 ("FOCUS on REGULATION")
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LGP Issue 2020 2 // news THE INFO MAGAZINE BY FOCUS ON LANSKY, GANZGER + PARTNER ATTORNEYS-AT-LAW REGULATION TELECOMMUNICATIONS LAW BLOCKCHAIN TECHNOLOGY IoT regulation as a challenge Tokenization as a form of financing DIGITAL SOCIETY STATE AID Telemedicine on a delicate legal footing Prohibition under Union law under the microscope CONTENT Editorial 3 ISSUE 2 // 2020 UP-TO-DATE 4 IoT services as a challenge for telecommunications law 4 The prohibition of state aid – a reminder and an all-clear 8 Digital contract management in practice 10 Is the existing legal framework still able to cope with the increased Telemedicine on a delicate legal footing 12 use of IoT applications in public Employment law and restructuring 14 networks? The coronavirus crisis – prelude to a lived practice of restructuring? 18 Common agricultural policy with ‘green architecture’ 20 12 INTERNATIONAL Tax liability to consider when moving to Austria 22 How safe are telemedical treatments for doctors and Current developments on bilateral investment protection agreements in the EU 24 patients – both in use and in law? From Minister to a successful international lawyer 26 Cross-border enforcement of judgments post-Brexit 28 LGP & Gerstbauer Strategic: dual advisory services with added value 29 32 Nagorno-Karabakh: consequences of a frozen conflict 30 FUTURE TOPICS Especially in times of crisis, it is worthwhile to Tokenisation as a form of financing 32 finance cost-intensive projects by issuing tokens INSIDE Legal updates by LGP Bratislava 34 37 Privy councillors, whisperers and spin doctors 37 ACTIVE In his new book, LGP Senior Expert Illustrious alumni meet at lofty heights 39 Counsel Manfred Matzka describes more than 300 years of éminences Digital finance and alternative investments-Roadshow 39 grises at the Ballhausplatz LANSKY, GANZGER IMPRINT partner Publisher/Media Owner: Lansky, Ganzger & Partner Rechtsanwälte GmbH, Biberstraße 5, A-1010 Wien // Editorial staff: + Dr. Gerald Ganzger, Mag. Tony Bayer, Anna Baskakova, PhD, Mag. Sarah Binder, Svetlana Chistyakova, MA, Kerstin Pfeisinger, BA, Helen Steinpaß // Editing & Layout: VGN Medien Holding GmbH // Photos: Amio Cajander, Andreas Tischler, APA/Martin Hörmandinger, Arnold Pöschl, BEX-Media/Curt Themessl, freepik.com, LGP, pixabay.com, unsplash.com, Verlag Brandstätter, LGP RECHTSANWÄLTE / ATTORNEYS wikimedia.org (Mister No, Sivizius) // Cover: iStock // Printing house: Donau Forum Druck Ges.m.b.H., Walter-Jurmann- Gasse 9, 1230 Wien // Place of publication: 1020 Wien, P. b. b. // Mailing-list: [email protected] Brandstätter Verlag Photos: unsplash.com; pixabay.com; 2 LGP news 2 | 2020 EDITORIAL Dear readers, dear clients, dear friends! The pandemic is leading to a reassessment of the need for regula- Did you know that the margin of discretion of an EU member state tion worldwide. Old neoliberal concepts that rejected regulation to in designing and enforcing its regulatory systems is not unlimited? help the market break through failed in both health and economic Mara Okmažić and Michael Komuczky provide information on the policy. Sacrosanct temples of European law, such as European state legal implications of the “Achmea ruling”, current developments aid law, must be reassessed. At the same time, joint procurement on Intra-EU BITs and the currently unclear legal situation regarding processes for vaccines are beginning at EU level in an unprecedent- bilateral investment treaties between Austria and Croatia. Howev- ed way. We will deal with this paradigm shift in detail in this and the er, many people are also unaware that moving to Austria can very next issues of our magazine. quickly lead to unwanted tax consequences. Daniel Kocab knows how to avoid unpleasant surprises by providing profound tax law Starting on page 14, LGP Managing Partner Julia Andras provides advice. examples of the restructuring measures required under labor law to save domestic companies from the threat of insolvency without The reform package for the Common Agricultural Policy (CAP) having to sacrifice a large part of their workforce to unemployment. after 2020, recently adopted by the 27 EU Agriculture Ministers, In contrast, Klaus M. Steinmaurer, Managing Director for Telecom- is progressive and particularly environmentally friendly. This is- munications and Mail at RTR GmbH, reports on new challenges in sue also explains why EU farmers will benefit more than ever from telecommunications law and current regulatory practices in connec- greater commitment to climate protection and biodiversity in the tion with IoT in a detailed guest article. coming years. We wish you exciting and informative reading Gabriel Lansky Gerald Ganzger Ronald Frankl Julia Andras Valentin Neuser Katharina Raabe-Stuppnig Arlind Zeqiri Martin Jacko Anna Zeitlinger Photo: Arnold Pöschl 2 | 2020 LGP news 3 UP-TO-DATE Photo: unsplash.com IoT-Services as a challenge for telecommunications law 4 LGP news 2 | 2020 UP-TO-DATE One of the aims of the European Electronic Communications Code (EECC) is to promote the expansion of 5G networks. Does the existing legal framework still do justice to future, in- creased use of IoT (Internet of Things) applications in public networks? A guest contribution by RTR Mana- ging Director Klaus M. Steinmaurer. n addition to the networking of things in the industry sector, networking is also taking place today in many of the processes in our daily lives and, as a result, the continuous improvement of I available communication infrastructures has become crucially important. This is because IoT applications come in many different forms depending on the purpose they are intended to serve. They can be completely static, mobile or a combination of both. The EU and its Member States cur- rently have no codified IoT law and there are no plans for such a system at present. The European Commission (EC) has, how- ever, announced that it will examine the “legal framework for autonomous systems and IoT applications” in order to evaluate ing from the 1990s is sufficient as a basis facilities and services and certain aspects and promote the possibilities of IoT. The for national legislation, and to what extent of terminal equipment. IoT is a cross-sec- EC considers IoT – along with 5G commu- it has succeeded in providing sufficient tional matter, however it affects telecom- nications, cloud computing, data technolo- remedies with the new European Electron- munications law in particular, with the gies (also for big data) and cyber security ic Communications Code (EECC). issue of spectrum use as well as the op- – to be one of the five priority areas that eration of IoT transmission services as constitute the basic technological building IoT and telecommunications law communication services, the connectivity blocks of the digital single market. of IoT applications, and also the number- The EECC provides a cohesive framework ing and security of networks and services It is, however, still up for debate as to for the regulation of electronic communi- being particularly pertinent. The same ap- Photo: APA-Fotoservice/Martin Hörmandinger Photo: APA-Fotoservice/Martin whether the current regulatory toolbox dat- cations networks and services, associated plies to M2M – an electronic communica- 2 | 2020 LGP news 5 UP-TO-DATE tions service – as for telecommunications GHz frequency range (millimetre waves) for it to be possible to have a network of law roaming in particular is still signifi- will also play a role in the future for specif- up to one million objects per square kilo- cant, as well as many other areas. ic local applications with only very short metre with 5G in the future, it risks a bot- ranges but very large bandwidths. Accord- tleneck situation as a result of the expected 5G C-Band Spectrum ing to EU guidelines, at least 1 GHz of this number shortage. Number administration band must be ready for allocation by the is also a fundamentally national task and However, in the vast majority of cases, in end of 2020. As the availability of these therefore only becomes effective within addition to alternative technical solutions, frequencies is comparatively unlimited, the borders of a nation state. This, in turn, it can be assumed that meaningful and, the allocation format to be chosen by law can lead to legal problems for IoT servic- above all, widespread service provision is still to be discussed. Austria is therefore es that are cross-border in nature. In any requires the flexibility and mobility of a still waiting for an allocation – in part due case, the implementation of the EECC in wireless public communications network. to a lack of identified current needs. all European Member States should facil- In particular, the 5G C(ore) band is char- itate access to the relevant numbering re- acterised by a relatively high bandwidth Addressing for sources for IoT providers. combined with good propagation charac- IoT applications teristics and is therefore very well suited Art. 93 to 97 EECC embed four funda- for IoT networks that do not want to be Every IoT-capable device must be techni- mental principles that are essential for just selectively available. The 5G technol- cally “addressable”, i.e. identifiable, in the IoT. They explicitly state that ‘access to ogy was developed primarily for IoT. The electronic communications network (fixed numbering resources on the basis of trans- allocation of these frequencies is subject and mobile) in order to route the transmis- parent, objective and non-discriminatory to national regulatory authorities. The 26 sion signals to the correct device. In order criteria is essential for undertakings to compete in the electronic communications sector. […]’. In any event, numbering re- sources must be managed efficiently be- cause of technical constraints. Although this principle is not new, it is helpful, as it is explicitly addressed in Articles 93(4), 94(1) and 94(5). In the future, Member States must also ensure the over-the-air provision of SIM card profiles in order to facilitate the change of provider (Art.