Austrian OGH: No Statutory No-Smoking Periods

Oct 10, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) recently delivered a decision in a case brought by apartment owners seeking an injunction against their neighbour, the owner of a multi-unit residential property, to prevent the emission of tobacco smoke. The claimants requested that smoking be prohibited on adjacent balconies, terraces, gardens, and during periods when windows are open within specified hours.

The court of first instance dismissed the case, and this decision was upheld by the appellate court. The evidence demonstrated that smoke emissions occurred for fewer than 88 hours per year, averaging under 15 minutes daily, with intensity levels varying from pronounced to minimal. No substantial or atypical interference with the plaintiff’s use of their property was established. Additionally, there shall be no statutory requirement mandating designated ‘smoking-ban periods.’

The OGH dismissed the appeal, citing the absence of a substantial legal question pursuant to Section 502(1) of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO). The selection and evaluation of expert testimony, as well as the assessment of local customs and the relevance of emissions, are not subject to appeal. In accordance with established jurisprudence, an injunction under Section 364(2) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) is contingent upon emissions being both atypical for the location as well as unreasonable. Minor or intermittent impacts are considered acceptable.

A similar ruling (OGH 2 Ob 1/16k) found no right to specific smoking ban periods since that case involved much higher exposure—up to five and a half hours daily, sometimes this being cigar smoke. In this instance, the plaintiffs were unable to demonstrate substantial harm.

Courts cannot mandate ‘smoking breaks,’ even in cases of unusual disturbances, and do not consider any tobacco emission during such periods as unreasonable. The appeal was dismissed.

OGH 6 Ob 155/24y (13 August 2025)