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Von Homeoffice zu Telearbeit

From “Homeoffice” to “Telework”

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Starting January 1, 2025, the regulations for work outside the company (“telework”) will be redefined. While there have been legal provisions for “home office” – work performed from the employee’s home – for several years, a dedicated legal framework for telework has been missing. This will change in the coming year: the heading of § 2h AVRAG will be updated from “Home Office” to “Telework,” and the provisions that previously applied to home office will be expanded and adjusted to encompass telework.

“Telework” is now defined as regular work performed in the employee’s home or in a “location not belonging to the company”, which now includes working from a café, public transportation, or a coworking space. In this context, the legislator particularly refers to work involving the use of information and communication technology.

For evidentiary purposes, a written telework-agreement is required between the employer and the employee. There is neither a legal entitlement to telework nor may it be unilaterally mandated by the employer. Such agreement can be terminated by either party with one month’s notice, effective at the end of the month, provided that there is a valid reason. Additionally, the employer has the right to restrict permitted work locations, particularly for reasons related to data protection.

As with home office arrangements, the employer is generally obligated to provide the digital tools necessary for telework. Deviations from this requirement can be agreed upon, but only if the employee is compensated for the reasonable and necessary costs of providing their own digital tools. This compensation may also take the form of a flat-rate payment. Additionally, under general civil law, employees may be entitled to reimbursement for other telework-related expenses, such as electricity, heating, or rent costs; however, contractual deviations from this are permitted.

The tax regulations that previously applied to home office arrangements will also be adapted to telework. With the enactment of the amendment, a telework-allowance can be paid. A tax benefit applies to allowances of EUR 3 per day for a maximum of 100 days per calendar year, amounting to a maximum of EUR 300 per year. To qualify, those days and the corresponding allowance must be listed on the employee’s pay slip or wage statement.

In addition to the tax-related adjustments, social insurance regulations have also been adapted to the new legal framework with a particular focus on strengthening employee insurance coverage. Starting with the new provisions, accidents that are causally related to telework are classified as occupational accidents. However, the burden of proof lies with the employee to demonstrate that the accident was not of a private nature.

Furthermore, a distinction is made for commuting accidents: when work is performed in the employee’s home or a coworking space, insurance coverage applies only to commuting accidents comparable to a typical work commute. This is referred to as telework in the narrower sense. In contrast, telework in the broader sense involves work performed in locations other than those mentioned above and travel associated with such work is not covered by insurance.

Don’t hesitate to contact our Team to learn more about this topic in Austria.

Passenger Mobility Package

The Passenger Mobility Package – An Overview

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Each year, over 13 billion journeys by plane, train, coach, bus, or ferry are made within the EU. In 2022 alone, 55.5 million package holidays were sold in the EU. The protection and continuous improvement of travelers’ rights have thus become a central initiative of the European Union.

In November 2023, the European Commission published the so-called “Passenger Mobility Package.” This package aims, among other things, to strengthen passenger rights and introduce more effective regulations for package holidays.

Strengthening Passenger Rights

The passenger regulations for air, rail, sea, and bus travel foresee largely similar changes. On the one hand, national enforcement bodies – in Austria, for example, the Agency for Passenger and Traveler Rights (apf) – are required to conduct more intensive monitoring. This monitoring should be carried out both announced and unannounced through audits, inspections, surveys, reviews, and examination of documents.

On the other hand, the provision of information regarding passenger rights is to be provided electronically in the future. Additionally, the introduction of a standardized refund form is planned, though its use will not be mandatory for travelers. The proposal also includes solutions for refund issues concerning flight tickets booked through travel agents.

The “Passenger Mobility Package” also contains a new regulation for travelers using multiple modes of transport, such as plane, train, and bus, and who miss connections due to delays. The regulation for multimodal travel addresses this existing gap and includes provisions for reimbursement when connections are missed, while under certain conditions, it allows for liability exemption for online travel agents.

More Effective Regulations for Package Holidays

A significant new aspect of the Package Travel Directive concerns the regulation of vouchers: travelers must be informed that they are not obligated to accept a voucher. Furthermore, each voucher must be protected against insolvency. The insolvency protection does not only apply to vouchers but to refunds in general and should be granted within three months after the traveler has submitted their refund request with all necessary documentation.

A recourse provision allows the tour operator to demand a full refund of all payments from the service provider within seven days if a service is canceled or not provided.

Although no EU-wide travel warning will be introduced, it is clarified that official travel warnings are crucial for assessing a free cancellation. In the wake of the Covid-19 pandemic and given current crisis situations due to natural disasters and wars, this is a particularly important aspect.

Don’t hesitate to contact our Team to learn more about the Passenger Mobility Package.

Incorrect Information Provided by the Tour Operator

Incorrect Information Provided by the Tour Operator

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The European Court of Justice (ECJ) ruled in joined cases C-650/23 and C-705/23 that a passenger who had a confirmed booking for a flight on the basis of a package tour can claim compensation from the operating air carrier within the meaning of Art 7 (1) of Regulation (EC) No 261/2004 even if incorrect information provided by the tour operator led to the passenger believing that the flight originally booked would not be operated, although it took place as planned.

The decision concerns a flight from Heraklion (Greece) to Linz (Austria). One day before the scheduled departure, the passenger was informed by the tour operator of a change in flight times and the destination airport. For this reason, the passenger did not show up for check-in for the flight in question. However, the flight was actually carried out as planned; the tour operator’s information was therefore incorrect. The passenger then demanded compensation from the operating air carrier and based his claim on Article 4 of Regulation (EC) 261/2004 (denied boarding). The Schwechat District Court awarded him this compensation, but the airline appealed against this decision to the Korneuburg Regional Court. The airline’s two main arguments were the missing of the facts of denied boarding and the lack of accountability of a rebooking by the tour operator.

The Regional Court of Korneuburg initiated a preliminary ruling procedure and wanted to know from the European Court of Justice whether a passenger who has a confirmed booking as part of a package tour can claim compensation from the operating airline if the tour operator has informed the passenger without prior consultation with the airline that the booked flight will not be carried out, although in reality it took place as planned.

Referring to its previous case law and the aim of Regulation (EC) 261/2004 to ensure a high level of protection for passengers, the European Court of Justice ruled that the operating air carrier is liable for incorrect information provided by the tour operator to passengers regarding the rescheduling or cancellation of a flight. Furthermore, the ECJ referred to the possibility of the operating air carrier to have recourse against the tour operator in accordance with Art. 13 of the Regulation.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

The necessity to suffer a loss of time to receive compensation

The necessity to suffer a loss of time to receive compensation

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In its recent rulings on cases C-474/22 and C-54/23, the European Court of Justice (ECJ) clarified that passengers are not entitled to a compensation payment in cases when their booked flight is delayed by more than 3 hours if they did not actually suffer a loss of time themselves, especially if they did not present themselves for check-in.

Traditionally, passengers whose flights arrive over three hours after the scheduled arrival time have been entitled to the same compensation passengers of cancelled flights receive. This principle was established in the landmark Sturgeon ruling (C-402/07 and C-432/07). However, the recent ECJ rulings demonstrate that there are still differences between flights that are cancelled and those that are significantly delayed.

The cases in question both involved flights from Düsseldorf (Germany) to Palma de Mallorca (Spain) where the operating carriers announced significant delays. In case C-474/22, upon learning of the delay, the passenger chose not to board the flight and later assigned his rights to flightright, which then sued the carrier for compensation. In case C-54/23, another passenger opted to book an alternative flight, resulting in an arrival delay of less than three hours.

The ECJ ruled that in both instances, the passengers are not eligible for compensation. This decision was based on Article 3 of Regulation 261/2004, which sets forth that the regulation only applies if passengers – except in cases of cancellations – present themselves for check-in in a timely manner. The passengers argued that this criterion should not apply in situations where the operating carrier had already announced that the flight would be delayed more than 3 hours, since such significant delays must be treated like cancellations.

However, the ECJ did not follow this reasoning ant stated that its landmark decision in the Sturgeon case was based on the concept that passengers enduring a delay of three hours or more suffer an irreversible loss of time and, consequently, a level of inconvenience comparable to that of passengers on cancelled flights. According to the ECJ’s rationale, compensation is a redress for this loss of time. Therefore, since the passengers in the recent cases either did not board their flights or managed to reduce their delay through alternative bookings, they did not experience the same loss of time and are, thus, not entitled to compensation.

However, it’s important to note that these passengers might still have other rights under Regulation 261/2004 or applicable law, such as ticket reimbursement or damages equivalent to the costs of the alternative flights they booked.

Don´t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.