Public Law measures and orders

Tuesday, 7 April 2020


Questions and answers:

Which laws are applicable and what are the most important regulations?

  • Epidemic Law 1950
  • Covid-19 law:
    • Covid-19-FondsG
    • Amendment of the Federal Financial Framework Act 2019 to 2022
    • Amendment of the ABBAG Act
    • Amendment of the Labour Market Policy Financing Act
    • Amendment of the Employment Contract Law Adaptation Act
  • Covid-19 Measures Act
  • 2nd Covid-19 Measures Act
    • Hardship Fund Act
    • Act on accompanying measures in administrative proceedings and in proceedings before the administrative courts
    • Amendment of the Covid-19 Measures Act
  • 3rd Covid-19 Measures Act
    • Amendment of the Hardship Fund Act
    • Amendment of the ABBAG Act
    • Amendment of the Covid-19-FondsG
    • Amendment of the Epidemic Law
    • Amendment of the Covid-19 Measures Act
    • Law on the placing on the market of rapid-action masks during the Corona COVID 19 pandemic
  • 4th Covid-19 Measures Act
    • Amendment of the Law on accompanying measures in administrative proceedings and in proceedings before the administrative courts
    • Constitutional law on accompanying measures in public procurement matters

The legal basis for the measures imposed by the federal government last week is the Epidemic Law of 1913, which was re-introduced in 1950. The object and aim of the law is to combat notifiable transmissible diseases. This includes Covid-19.

Obligations and measures under the Epidemics Act are special reporting and notification obligations of sick persons, the isolation of sick persons (quarantine), measures of disinfection, exclusion of persons from and closure of schools, restrictions on the movement of food, surveillance of certain persons, prohibition of gatherings of people, evacuation of flats as well as traffic restrictions for the inhabitants of certain localities and in cross-border traffic with foreign countries and closure of businesses.

Crowds of more than 500 people outside closed rooms or in the open or more than 100 people in a closed room were already banned several weeks ago on the basis of the Epidemic Law. This applies in particular to such events that are to be held in companies, businesses, schools (e.g. school trips), in higher education establishments, kindergartens, nursing homes, for religious purposes or in tourist facilities and sights. Excluded from this are, among other things, meetings in institutions for the maintenance of health care, in connection with the satisfaction of the basic needs of public life, work activities in companies, works meetings and public transport as well as the facilities and plants directly belonging to the company.

With the Covid measures law passed in the National Council on Sunday, a new legal basis was created which partially derogates the Epidemics Act. Although this is still valid, two important new competences were created and measures were drawn to the federal level:

  • Plant closures are no longer covered by the Epidemic Law, but under the COVID Measures Law the Minister of Health can now order the "entering of premises for the purpose of purchasing goods and services". The Epidemic Law and its regulations on plant closures are then no longer applicable. This also means that the compensation for loss of earnings provided for in the Epidemic Law with regard to business premises is no longer applicable.
  • The ordinance can also prohibit access to certain places, such as children's playgrounds, sports fields, lake and river banks or consumption-free zones.

What changes under public law have been implemented by the Covid-19 Acts or will be implemented?

Amendment to the Telecommunications Act 2003:

It is necessary to warn people by easily accessible means. In the event of a crisis, it should therefore be possible to oblige telecommunications operators, even informally through the Federal Government, to disseminate warnings to their customers, for reasons of time. Until now, this has required the voluntary participation of telecommunications operators. It has now  become an obligation.

Federal law on accompanying measures to Covid-19 in administrative proceedings, in proceedings of the administrative courts and in proceedings of the Administrative Court and the Constitutional Court:

  • Suspension of time limits: Time limits whose event giving rise to a time limit occurs after the entry into force of the 2nd Covid-19 Act and time limits which have not yet expired before the entry into force of the 2nd Covid-19 Act will be interrupted until the end of 30.4.2020. They shall begin to run again on 1.5.2020. This also applies to limitation periods (§ 31 VStG), but not to maximum periods laid down in constitutional law and to periods under the Epidemic Law 1950.
  • Oral hearings, interrogations and the like, oral communication between authorities and parties involved: Apart from by audiovisual means, oral hearings etc. during the Corona crisis may only be conducted if absolutely necessary.
  • The Federal Chancellor shall be authorised to extend or shorten the ordered general suspension of time limits or to provide for further general exceptions to the interruption by ordinance, insofar as this is necessary to prevent and combat the dissemination of Covid-19.
  • These measures shall be applied analogously to the proceedings of the administrative courts if at least the AVG is also applicable to the respective proceedings.

Amendment of the Administrative Court Act 1985:

During the period of the restrictions of public life by Covid-19, the decision making in the senates of the Administrative Court should also be made possible by circulation in those cases in which five senates decide. Finally, for the plenary assembly, which will have to decide in 2020, in particular on the submission of tripartite proposals for the appointment of members, the possibility should be created for decisions to be taken by circulation as well.

Amendment of the Constitutional Court Act 1953:

During the pandemic, the Constitutional Court may also take decisions by circular letter or by means of telecommunication. In addition, the Constitutional Court shall be authorised to extend the period for the expiry of laws and ordinances to a maximum of 18 months in total, so that in the meantime a substitute regulation in conformity with the Constitution can be created.

Amendment of the Federal Constitutional Law:

In future, the Federal Government will also be able to pass its resolutions by circular letter or in a video conference.

Amendment of the Service of Documents Act:

Until the end of 30.4.2020, i.e. until the end of the interruption of the time limit, service of the document shall be facilitated, in particular by the fact that the document may be served on the addressee by placing it in the deposit facility designated for the delivery point or leaving it at the delivery point, at which time it shall be deemed to have been served. Insofar as this is possible without endangering the health of the deliverer, the addressee shall be notified of the delivery by written, oral or telephone notification to himself or to persons who can be reasonably expected to be able to contact the addressee. The delivery shall not be effected if it appears that the addressee could not be informed of the delivery in time due to absence from the delivery point, but the delivery shall take effect on the day following the return to the delivery point.

Amendment of the Physicians Act 1998:

In the event of a pandemic, the medical reservation of activities will be lifted in order to allow for additional examinations to be carried out by appropriate laboratories or institutes, in particular veterinary institutions, to meet the increased demand. Furthermore, regulations on supply and provision obligations for manufacturers, authorised representatives and delivery points for medical devices can be issued by ordinance if and as long as this is necessary due to the special situation.

With the 3rd Covid-19 Measures Act, epidemic physicians (Epidemieärzte) were put on an equal footing with public health officers (Amtsärzte) according to Section 27 para 1 of the Epidemic Act.

Amendment of the Medical Devices Act:

During a pandemic, etc, far-reaching exemptions from the applicability of the Medical Devices Act can be decreed by ordinance.

Amendment of the Health Telematics Act:

The proposed rules will make it possible to ensure the supply of medicines to vulnerable groups (i.e. people over 70 years of age and/or with pre-existing conditions), not least with the support of close relatives or social services, and to avoid having to see doctors and pharmacies only for prescriptions.

Law on the placing on the market of oronasal rapid-action masks during the Corona Covid-19 pandemic

No certification according to the Medical Devices Act or the Machinery Marketing and Notification Act is required for 3 months for oronasal rapid-action masks. For such non-certified masks, a notice must be attached stating that they are not nationally certified and have not been medically or otherwise tested.

Constitutional Law on accompanying measures in matters of public procurement

Since procedural law in matters of public procurement is regulated at both state and federal level, a constitutional law has been passed that sets out appropriate accompanying measures with regard to deadlines.

Which companies are specifically affected by the plant closures?

It is prohibited to enter the customer area of business premises of retailers and service providers as well as leisure and sports businesses for the purpose of purchasing goods or services or using leisure and sports facilities

Companies in which there is no contact with customers are therefore not affected by the ban. These will be manufacturing companies, unless they sell locally produced goods at the same time.

The owner of the business premises and his employees or persons who provide services there (e.g. cleaning work) are not affected by the prohibition of entry.

There are exceptions to the prohibition of entry in the following areas:

  • public pharmacies;
  • food retailers (including outlets of food producers) and farmers' direct marketers
  • Drugstores and drugstores;
  • Sale of medical and sanitary products, remedies and aids;
  • health and care services;
  • Services for people with disabilities provided by the Länder under the laws on disability assistance, social assistance, participation and equal opportunities;
  • veterinary services;
  • Sale of animal feed;
  • Sale and maintenance of security and emergency products;
  • Emergency services;
  • Agricultural trade including auctions of slaughter animals as well as horticultural business and trade in agricultural products such as seeds, feed and fertilizers;
  • Gas stations;
  • Banks;
  • Post including postal partners and telecommunications;
  • services relating to the administration of justice;
  • delivery services;
  • Public transport;
  • Tobacco shops and newspaper kiosks;
  • Hygiene and cleaning services;
  • Waste disposal companies;
  • Car repair shops.

A legally non-binding but helpful interpretation guide is provided by the Austrian Federal Economic Chamber here:

Hospitality establishments are generally closed from 16.3.2020 15:00 hrs, although a delivery service remains permissible in any case. An amendment to the corresponding ordinance has now clarified that a pick-up service is also permitted if the safety distance of at least one metre can be maintained. Excluded from the closure are catering establishments in::

  • Hospitals and health resorts;
  • nursing homes and homes for the elderly;
  • facilities for the care and accommodation of children and adolescents including
  • Schools and kindergartens;
  • establishments, if these may only be used by employees.

In accommodation establishments, on campsites and in public transport, food and drink may only be served to guests.

Entering accommodation establishments for the purpose of recreation and leisure is prohibited until 24.4.2020. Accommodation establishments are places of accommodation which are under the management or supervision of the accommodation provider or a person authorised by the latter and which are intended for the accommodation of guests for a temporary stay, whether for payment or free of charge. Supervised camping sites, caravan sites and refuges are considered as tourist accommodation establishments.

Exceptions exist:

  • for persons who are already in accommodation at the time of the entry into force of this provision, for the duration of accommodation agreed in advance with the accommodation provider;
    • for the purpose of care and assistance to persons in need of support;
    • for professional reasons; or
    • to meet an urgent housing need.

What are the hygiene rules for supermarkets and drugstores?

The following measures have been taken for supermarkets and drugstores and drugstores whose customer area exceeds 400 square meters:

  • Employees of supermarkets and drugstores/drugstores are required to wear mechanical protection devices to provide a mechanical barrier against droplet infection;
  • as soon as they are available, these mechanical protection devices must be made available to customers free of charge if they do not bring their own mechanical protection devices;
  • as soon as these mechanical protection devices are made available to customers by the owners of supermarkets, the latter may only allow customers into the sales area if they wear mechanical protection devices;
  • supermarket employees must wear gloves in the customer area, although this does not release them from the obligation to maintain the necessary hand hygiene;
  • disinfectant dispensers must be provided at the entrance;
  • the handle of shopping trolleys must be disinfected after each customer use;
  • surfaces or devices (e.g. freezer handles) regularly touched by customers must be cleaned and disinfected regularly;
  • Plexiglas protection must be provided at all staff-operated checkouts;
  • floor markings must be placed in the checkout area to check and maintain the prescribed safety distance of one metre;
  • the design of the sales areas should be such that the safety distance can be maintained;
  • the use of shopping trolleys should be provided for to ensure the safety distance;
  • a number of customers shall be defined who may be present in the supermarket at the same time in order to ensure the prescribed one-metre safety distance between the persons present; when this number is reached, additional customers may only enter the supermarket if some have left it beforehand ("one-in-one-out");
  • employees are requested to recommend the possibility of contactless payment to customers;
  • Customers are to be informed by appropriate information on a poster/pictograms that they may not enter the business premises if symptoms are present.

Supermarkets and drugstores and chemists whose customer area is less than 400 square metres must, in deviation from the above list, ensure that general protective measures against the coronavirus (Covid-19) are taken, such as regular thorough cleaning of employees' hands with soap or a disinfectant, keeping a distance of at least one metre and observing respiratory hygiene of employees.

The additional hygiene rules are to be implemented immediately, but no later than 6.4.2020.

Are there any curfews? What traffic restrictions have been imposed?

There is a general ban on entering public places. The following entries are permitted:

  • which are necessary to avert an immediate danger to life, limb and property and the use of means of mass transportation in connection therewith;
  • which serve for the care and assistance of persons in need of support and the related use of means of mass transportation;
  • - which are necessary to meet the basic needs of daily life and which ensure that a distance of at least one metre can be maintained between persons at the place where the needs are met, unless the risk of infection can be minimised by appropriate protective measures. This exception also includes burials within the immediate family;
  • - which are necessary to meet the basic needs of daily life and which ensure that a distance of at least one metre can be maintained between persons at the place where the needs are met, unless the risk of infection can be minimised by appropriate protective measures. This exception also includes burials within the immediate family;
  • if public places in the open air are to be entered alone, with persons living in the same household or with pets, a distance of at least one metre must be maintained from other persons

In addition, the entering of

  • health resorts for spa guests; and
  • Prohibited from rehabilitation facilities for patients, except for absolutely necessary medical rehabilitation measures following acute medical treatment and within the framework of support services for general hospitals.

The province of Tyrol has been declared a restricted area by a decree of the Governor of Tyrol. This regulation has since been repealed and was valid until 6.4.2020.:

The special arrangements for the Paznaun, St Anton and Sölden remain in place. They prohibit leaving the quarantine area even if the place of work of a person affected is outside the restricted zone. In the remaining municipalities of Tyrol it is permitted to leave the municipal territory for the exercise of a professional activity. These special arrangements were extended at the end of March until 13.4.2020.

Furthermore, upright quarantines still exist for Altenmarkt in Pongau, Zell am See and Saalbach, Flachau, the Grossarl Valley and the Gastein Valley.

How long do these measures apply?

The federal restrictions are expected to remain in force until 13.4.2020. The special regulations in Tyrol for Paznaun, St Anton and Sölden remain in force until 13.4.2020.

What other travel restrictions are there?

Until 13.4.2020 there are landing bans in Austria for aircraft from the following countries:

  • People's Republic of China,
  • Republic of Korea,
  • Islamic Republic of Iran,
  • Italian Republic,
  • Switzerland,
  • France,
  • Spain,
  • United Kingdom,
  • Netherlands,
  • Russian Federation,
  • Ukraine.

In addition - except for freight trains - rail passenger transport to Italy, Switzerland and Liechtenstein will be discontinued at any rate by 13.4.2020.

What special regulations apply to Easter at home and other family celebrations?

A decree of the Ministry of Health is to enforce a ban on meetings of more than five people in enclosed spaces. The number of people attending funerals and weddings will also be limited to 10 and 5 persons respectively.

Will I receive compensation as a company affected?

The aim of the COVID-19 measures law was probably to "lever out" the compensation claim according to the Epidemic Law, even if the materials - so they say - do not say so. It is clear, however, that if a ban on entering a company for the purpose of acquiring goods and services is imposed under the COVID-19 Measures Act, the provisions of the Epidemic Act concerning the closure of businesses do not apply in such a case, so that the claim for compensation (claim for compensation for loss of earnings) under the Epidemic Act also ceases to apply in the event of business closures.

Interestingly, the legislator has included the following clarification in Section 4(2) of the 2nd COVID-19 Act

"(2) If the Federal Minister has issued an ordinance pursuant to section 1, the provisions of the Epidemic Act 1950, Federal Law Gazette No 186/1950, concerning the closure of establishments within the scope of this Ordinance shall not apply."

This was to eliminate uncertainties as to whether it is still possible to impose bans on entry in accordance with Section 1 of the COVID-19-Measures Law on the one hand and to close down premises in accordance with Section 20 of the Epidemic Law 1950 on the other.

However, the Epidemic Law and the right to compensation enshrined in it do not cease to apply in its entirety; it remains in force, for example, if no prohibition to enter a business premises has been issued, but the trader is subject to traffic restrictions in a prohibited zone and therefore the trade cannot be carried on. One could also consider a claim for compensation for loss of earnings at events which have to be cancelled due to the ban on the gathering of crowds. These probably do not fall under the COVID-19 Measures Act, which is why a compensation claim under the Epidemics Act is conceivable here.

Support for SMEs

By an ordinance of the Federal Minister of 27.3.2020, which is based on the SME Promotion Act (KMU-Fördergesetz), a total amount of EUR 1,250 million was allocated to AWS (Austria Wirtschaftsservice Gesellschaft mbH) and a total amount of EUR 625 million to ÖHT (Österreichische Hotel- und Tourismusbank Ges.m.b.H.).

Are there consequences if a company does not comply with these requirements (e.g. closure of shops)?

The Covid-19 measures act provides for penal provisions. Anyone who enters prohibited establishments or places must expect a fine of up to EUR 3,600.00; owners of establishments can be punished with up to EUR 30,000.00 if they fail to ensure compliance with the ban on entering. In addition, the Epidemic Law also provides for administrative penalties of EUR 1,450.00 if, for example, the prohibition of crowds is not observed; otherwise the upper limit in the Epidemic Law is EUR 2,180.00.

Your contact person:

Bernhard Müller
Head of Public Law Practice Group
T +43-1-533 4795-57