Austria: OGH on Labour Law and Unjust Enrichment

Oct 31, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed that the higher statutory interest rate outlined in Section 49a of the Austrian Labour and Social Court Act (Arbeits- und Sozialgerichtsgesetz, hereinafter ASGG) also covers employer claims for reimbursement based on unjust enrichment law. In effect, this provision does not just apply to claims made by employees—it extends to all monetary claims connected to labour law.

In the case at hand, an employee had initially received about EUR 126,534.51 in unpaid wages and EUR 37,416.78 as cost reimbursements due to a provisionally enforceable court ruling. After his claim was denied, he was instructed to pay back the amounts he had received. The employee resisted paying the full 8.58% interest required by Section 49a of the ASGG and instead paid only 4%. As a result, the employer took legal action and successfully obtained the remaining interest.

Expansive Interpretation of Section 49a ASGG

The OGH decided that Section 49a ASGG covers restitution claims based on enrichment law. Both employees and employers can benefit from the higher interest rate, since the rule does not favour one side over the other. The key point is that the claim must come from an employment relationship, regardless of its legal basis.

Repayments arising from unjust enrichment are classified as ‘interest on a sum of money to be reimbursed’ according to Section 1333 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). The court clarified that Section 49a of the ASGG encompasses not only default interest in the strict sense, but also any interest claims associated with late payment or repayment.

Section 49a ASGG, second sentence, states that a higher interest rate may be avoided only if the payment delay is due to a reasonable legal opinion. In this case, that requirement was not fulfilled because the defendant’s argument for delayed payment was based on incorrect facts. Simply misunderstanding the situation is not enough to avoid paying the increased interest rate; what matters is whether the legal opinion was objectively understandable.

OGH 8 ObA 15/25a (23 June 2025)