Austrian OGH: Level Crossing Terms Update

Jul 16, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with establishing the criteria under which a railway operator is permitted to unilaterally modify the terms of use for a private level crossing. The matter addressed the balance between the rights of individuals entitled to access the crossing and the safety interests of the railway operator.

Usage rights granted pursuant to a prior official ruling

For several decades, the claimant had accessed his agricultural property using a private level crossing. Since 1987, his legal predecessor was officially granted the right to utilise this level crossing, contingent upon compliance with specified safety measures.

In a letter dated November 2024, the railway company informed the claimant of new terms of use which provided for restrictions on access to the crossing. In future, access would only be permitted following authorisation by telephone and by means of a key. The claimant considered these restrictions to be unlawful and sought their removal.

Unilateral changes are permitted only to a limited extent

The OGH first clarified that the decision dating from 1987 remains valid in relation to the claimant as the legal successor. However, since the amendment to the Austrian Railways Act came into force in 2006, conditions of use are no longer issued by public authorities but are determined by the respective railway operator. In the OGH’s view, this does not constitute an act of public authority but rather a matter governed by private law, comparable to general terms and conditions, and is therefore subject to review by the ordinary courts.

The OGH clarified that, whilst changes may in principle be made by mutual agreement, a unilateral change is permissible if it is necessary for objective safety reasons. The new conditions must be necessary and proportionate and must not place a greater burden on those entitled to use the path than is necessary. Measures which make the use of the path practically impossible or unreasonable, on the other hand, are not permissible.

Since it remains undetermined whether the new terms of use are essential for security purposes and whether they impose an unreasonable burden on the claimant, further proceedings are required to address these issues.

OGH 9 Ob 22/26i (27 May 2026)