On 29 June 2017, the Austrian National Council enacted an amendment to the Trade Regulation Act (Gewerbeordnung, GewO). The new features adopted fall into three categories; they will enter into force on or before 1 May 2018, depending on the regulation. The reform includes the following material elements:

1. Reduction of the number of regulated trades, introduction of a uniform trade permit

Job placement and the production of cosmetic articles are going to be unregulated trades (‘free’ trades). Besides, some regulated crafts will be combined; proof of qualification for these remains a requirement.  In future, the number of regulated trades will be reduced to 75. On the other hand, the scope of some trades will be extended: e.g., the trade of master builder will include clean-up activities for building sites and measures preparatory to the demolition of buildings. Simplifications have been introduced for the hospitality trade: Lodging establishments offering services such as excursions or spa treatments no longer need separate trade permits for those services.

In future, it will be possible to do business in any of approximately 440 free trades under a uniform trade permit, the so-called ‘Gewerbelizenz’ (trade licence or single licence). This will allow tradespeople to provide services from other free trades, if it makes economic sense to supplement their own services by such other services. Should these ‘other’ services exceed 30% of annual total revenue, however, this must be notified to the trade authority. In such case, i.e. if the total-revenue limit is exceeded, the basic levy due for the exercise of the other trade becomes payable. Holders of a trade permit in a regulated trade may earn up to 15% of any order total in another regulated trade without requiring an additional trade permit.

2. Reform of proceedings regarding business facilities

A major part of the reform of the Trade Regulation Act concerns the regulation of plant permit proceedings: Standard plant permit proceedings are to become speedier. In principle, authorities have to issue their decision in administrative proceedings within a period of six months. Now the period for decisions is to be reduced to four months in standard plant permit proceedings, and from three months to two months in simplified approval and permit proceedings pursuant to section 359b GewO. The time limit of two or four months will also apply to the resolution of appeals lodged with the Administrative Court against permit-related decrees. If the time limits are exceeded, a complaint about the delay may be lodged with the Administrative Court or an application to set a time limit filed with the Austrian Supreme Administrative Court (Verwaltungsgerichtshof).

Another part of the amendment concerns simplified approval and permit proceedings. The recast Act is to make it possible to determine at an earlier stage of the proceedings than now who must be involved in the proceedings as a party, and to what extent. The project documentation filed will be available for inspection at the authority for not more than three weeks. Within said time limit, neighbours can raise the objection that the requirements for the simplified proceedings are not met; otherwise, neighbours lose their status as party to the proceedings. Up to now, it was possible to raise this objection at any time until the end of a hearing.

Furthermore, businesses are provided with the option to choose whether the services of official or unofficial experts are retained in the approval or permit proceedings. The application for the appointment of an unofficial expert must be filed at the same time as the application for the approval of the project. The costs of the unofficial expert have to borne by the applicant. To preclude that opinions are issued as a favour to the applicant, the trade authority will be in charge of selecting such an unofficial expert.

In view of the upcoming ban on smoking and the related fear of nuisance in the form of noise being caused by guests smoking outside the establishments concerned, local authorities may require bars, restaurants and similar businesses to open later or close earlier if neighbours are repeatedly subjected to unacceptable nuisance by guests behaving in a manner not amounting to punishable conduct or if there are police concerns regarding security.  Whether the nuisance is unacceptable needs to be determined by experts.

3. ‘Advise – don’t punish’

The last new feature relates to the course of action to be taken in the case of infringements of the GewO: If the trade authority identifies an infringement of legal provisions concerning commercially operated plants, and provided that the protected legal interest is of minor importance and not intensely affected by the infringing action and negligence on the part of the respective businessperson is slight, then the trade authority must, in the interest of ending the punishable conduct as effectively as possible, advise the businessperson and request the latter in writing to ensure conformity with the law within a reasonable time.

If the written request is complied with within the time limit set or prolonged by the authority, any further pursuit of the businessperson in respect of that infringement will be inadmissible. The written-request procedure also applies in cases where the scope of trades as notified under the trade licence is exceeded. This new regulation does not apply in cases of intentional conduct, in cases where the authority already issued written requests in the last three years, if the business person still has a record of previous administrative penalties, or in cases of infringements resulting in procedural orders or the withdrawal of the trade permit.