Corporate | 20 July 2009 14:25
Flughafen Wien AG / Miscellaneous
Release of a Corporate News, transmitted by DGAP - a company of EquityStory
AG.
The issuer / publisher is solely responsible for the content of this announcement.
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Flughafen Wien AG reports that legal opinions by numerous well-known
experts including constitutional law professor Dr. Bernd-Christian Funk as
well as Dr. Franz Marhold and Wolf Theiss, the largest law firm in Austria,
have indicated that they do not see sufficient legal basis for an
examination by the Austrian Federal Audit Office. According to the
constitutional law opinion by Dr. Funk, the arguments against the
controlling jurisdiction of the Austrian Federal Audit Office are
overriding. 'As a listed company, we are required to comply with stock
exchange law. We can therefore not voluntarily agree to an audit without a
well-founded legal basis. All expert opinions have indicated that this
legally binding decision can only be made by the Supreme Constitutional
Court of Austria. We did not make this decision lightly, since we are very
interested in clarifying the developments surrounding the Skylink project',
commented the Management Board of Flughafen Wien AG in reference to the
ongoing investigations. The Management Board of Flughafen Wien AG has
evaluated the relevant legal opinions and decided that it cannot agree to
an examination by the Austrian Federal Audit Office. The Supervisory Board
has taken positive notice of this decision.
The Management Board will meet the demands of the Flughafen Wien employee
foundation ('Flughafen Wien Mitarbeiterbeteiligung Privatstiftung') for an
Extraordinary General Meeting, which will be asked to approve a special
audit of the Skylink project pursuant to Austrian stock exchange law. In
agreement with the Supervisory Board, the Management Board will convene
this meeting on 20 August 2009.
Constitutional law arguments against jurisdiction of Austrian Federal Audit
Office predominate
An expert opinion by constitutional law professor Dr. Bernd-Christian Funk
indicates that 'the Austrian Federal Audit Office does not have controlling
jurisdiction based on equity participation'. This statement is based on a
regulation that calls for 'an investment of at least 50% in the capital
stock, share capital or equity of the legal entity', which is not met by
the ownership structure of Flughafen Wien AG. In the evaluation pursuant to
constitutional law, 'the legal arguments against the existence of control
and therefore against the controlling jurisdiction of the Austrian Federal
Audit Office dominate.' According to this expert opinion, 'there is a
constitutional issue that has not been unequivocally clarified by previous
judicial decisions but which, in an extension of these arguments, can be
answered in a rejection of the controlling jurisdiction of the Austrian
Federal Audit Office. The Supreme Constitutional Court of Austria is
responsible for a binding decision.'
Voluntary audit could possibly lead to claims for damages
According to Wolf Theiss, the Management Board 'would be guilty of a
violation of its due diligence obligations if it consented to an
examination by the Austrian Federal Audit Office - given the lack of
jurisdiction of the Austrian Federal Audit Office to conduct such an
audit.' An expert opinion by law professor Dr. Franz Marhold indicates that
the 'acceptance of an examination by the Austrian Federal Audit Office
without objection would lead to a situation that is not provided for under
constitutional law, and would in turn create further legal uncertainty.'
Experts indicate that 2001 legal opinion by Austrian Federal Audit Office
is still valid
In a letter dated 9 November 2001, Austrian Federal Audit Office President
Fiedler explained that 'a binding decision on the jurisdiction or lack of
jurisdiction cannot be made by the Austrian Federal Audit Office itself,
but only by the Supreme Constitutional Court of Austria.' The circumstances
relevant for this evaluation have not changed since that time, according to
an opinion by Wolf Theiss. This opinion agrees with the 2001 letter from
the Austrian Federal Audit Office, which indicates that the Austrian
Federal Audit Office does not have the jurisdiction to audit Flughafen Wien
AG and that a binding decision can only be made by the Supreme
Constitutional Court of Austria.
Robert Dusek
Head of Investor Relations
Flughafen Wien AG
Tel: 0043-1-7007/23126
20.07.2009 Financial News transmitted by DGAP
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Language: English
Issuer: Flughafen Wien AG
Postfach 1
1300 Wien-Flughafen
Österreich
Phone: +43-1-7007/23126
Fax: +43-1-7007/23058
E-mail: r.dusek@viennaairport.com
Internet: www.viennaairport.com
ISIN: AT0000911805
WKN: 884216
Indices: ATX
Listed: Freiverkehr in Berlin, München, Stuttgart; Open Market in
Frankfurt; Foreign Exchange(s) London, Wien
End of News DGAP News-Service
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