New regulation for the non-food trade

Just before Good Friday (Karfreitag), a new ordinance of the Federal Minister of Social Affairs, Health, Care and Consumer Protection (Bundesminister für Soziales, Gesundheit, Pflege und Konsumentenschutz)¹ was announced. This means that as of 14 April (Easter Tuesday), an extended group of trade and service enterprises may open again. In the following you will find answers to important questions.

Which business premises benefit from the relaxation of the regulations?

• Retailers for building materials, iron and wood,
• DIY markets and garden centres and
• Pawnbrokers and trading in precious metals.

It is also stated (or clarified) that car washes connected to gas stations and bicycle repair shops may also open. Automotive workshops have never been subject to restrictive measures.

In regard to other retailers, see below.

Are the regulations for other commercial establishments also relayed?

Yes, but only within narrow limits.

Other retail premises are defined in the ordinance as "premises…for the sale, manufacture, repair or processing of goods" (e.g. textile shops).

However, such trading retailers may only open from 14 April onwards if the customer area inside the building does not exceed 400 m² (for the relevant effective date see below).

How is the permitted customer area within shops (400 m² limit) calculated?

Basically, the customer area is calculated as it existed before the ban of entry was issued and as it existed since April 7, 2020.

If the size of the customer area was reduced to 400 m² or less after 7 April, it is still not allowed to open on 14 April. Such reductions of the customer area must not be taken into account when determining the size of the customer area. Therefore, making the customer area smaller too late, does not work.

For shopping centres see below.

Why was the relevant date set with April 7, 2020?

This is unclear. The head of government's press conference was on 6 April. There the plans for opening smaller shops as of 14 April 2020 were presented (https://www.bundeskanzleramt.gv.at/bundeskanzleramt/nachrichten-der-bundesregierung/2020/bundeskanzler-kurz-stufenplan-fuer-schrittweise-oeffnung-von-geschaeften-nach-ostern-aber-massnahmen-weiter-befolgen.html).

What applies to business premises in larger buildings (e.g. shopping centres)?

The ordinance is clear.

In the case of at least two structurally connected business premises (e.g. shops in a shopping centre), the business premises must be added together for the purposes of determining the 400 m² limit. This means that the sales areas of all structurally connected business premises must be taken into account. This will usually result in the 400 m² limit being exceeded.

But there is one important factor to be borne in mind. The addition rule only applies if the customer area is entered via the connecting structure (for example, common entrance area in a shopping centre). If, the shops are accessible from the parking lot through separate customer entrances (as in the case of certain retail parks), the addition rule does not apply. Such other retail premises therefore obtain preferential treatment. The idea behind this differentiation was apparently to avoid large gatherings of people in the common entrance area (typical situation in shopping centres). This is understandable.

Why was the limit set at a sales area of 400 m²?

Setting a limit makes sense if you want to stick to the plan to ramp up the economy step by step. It is not entirely plausible to determine this (only) on the size of the sales area.

In the case of larger shops, one could have proceeded by limiting the number of customers. Especially if shopping centres are still not allowed to be entered anyway. Don't customers tend to get lost in larger shops? Well, yes.

What are the opening hours from 14 April onwards?

As before, shorter opening hours (on weekdays from 07.40 to 19.00 at the latest) apply to

• Drugstores and drugstore chains.
• Sale of medical and sanitary products, remedies and aids.
• Sale of animal feed.
• Sale and maintenance of safety and emergency products.
• Agricultural trade including auctions of slaughter animals as well as agriculture trade with seeds, fodder and fertilizers.

These restricted opening hours also apply to the following business premises that are open from April 14 onwards:

• retailers for building materials, iron and wood, DIY markets and garden centres and
• pawnbrokers and trading with precious metals and
• other commercial trade retailers (provided that the other conditions for a permissible opening are met).

More restrictive opening hours rules due to other legal regulations remain unaffected.

What additional conditions apply to the already privileged premises and those premises that are allowed to open from 14 April onwards?

Employees in contact with customers as well as customers must wear a mechanical protective device that covers the mouth and nose area well as a barrier against droplet infection; this does not apply to children under the age of six. For the previously privileged branches this means a tightening of the regulations (with the exception of the food trade, cf. decree of the BMSGPK, GZ: 2020-0.210.637).

In addition, a distance of at least one meter from other persons must be maintained.

A special feature applies to health and care services and services for people with disabilities, which fall under the legislation of the Austrian provinces for disability assistance, social assistance or on participation and equal opportunities. There, the relevant (typically stricter) occupational and institution-specific requirements and recommendations apply (the one-metre distance, of course, does not).²

What further conditions must other retail premises fulfil?

In addition to the above-mentioned requirements (400 m² limit, obligation to wear a mask, one-metre distance), the operator of other retail premises must also ensure - by taking suitable measures - that only so many customers are allowed in the customer area that each customer in the shop has 20 m² available (with 400 m² this would be 20 customers); if the customer area is smaller than 20 m², only one customer may enter the premises at a time.

This customer limitation does not apply to the other privileged sites.

What applies to accommodation establishments?

The legal situation does not change; the prohibition of entry (with exemptions) was extended until the end of April 2020.

For what period do the above provisions apply?

The amended ordinance enters into force on 13 April and expires on 30 April 2020. Subsequently, a further relaxation of the prohibition of entry is to follow.

What are the administrative penalties?

Under the COVID-19 Measures Act, a fine may be imposed on:

• a person who enters a business premise where access is prohibited (up to

EUR 3,600).

• the owner of a business premises where entry is banned, if the owner does not ensure that the business premises is not entered (up to EUR 30,000).
• the owner of a business premises, which may be entered under the specifications for the maximum number of customers in the business premises (20 m² per customer) if the owner does not ensure that the business premises is entered by no more than the stated number of persons (up to EUR 3,600).

Hinweis: Dieser Newsletter stellt lediglich eine generelle Information und keineswegs eine Rechtsberatung von Binder Grösswang Rechtsanwälte GmbH dar. Der Newsletter kann eine individuelle Rechtsberatung nicht ersetzen. Binder Grösswang Rechtsanwälte GmbH übernimmt keine Haftung, gleich welcher Art, für Inhalt und Richtigkeit des Newsletters.