Austrian OGH on Mandatory Translation Fees

May 30, 2025 Benn-Ibler Rechtsanwälte

In antitrust proceedings, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has referred a request for a review of the law to the Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH). The request seeks the repeal of the second half of Section 35b(4) of the Austrian Cartel Act (Kartellgesetz, hereinafter KartG) because the OGH considers this provision to be in breach of fundamental rights.

The case originated from Austrian antitrust proceedings in which a Dutch parent company had been held liable for translation costs despite not having been accused of any specific anti-competitive conduct. The court of first instance ordered the foreign company to bear the translation costs of over EUR 22,000 for translating the statement of claim into Dutch, in accordance with the contested legal provision. The third-party defendant appealed against the costs decision, invoking infringed fundamental rights. Specifically, they invoked the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and the rights of defence under Articles 47 and 48 of the EU Charter of Fundamental Rights.

The legal issue at hand is that the obligation to pay for translations is imposed regardless of the outcome of the proceedings, and without proof of misconduct. The OGH considers this to be a potential breach of the presumption of innocence principle in criminal proceedings, as well as the right to free translation of essential documents. According to the established case law of the European Court of Human Rights (e.g. Luedicke v Germany), the costs of court interpreters in criminal proceedings may not be passed on to the person concerned. As antitrust proceedings are similar in nature to criminal proceedings, these guarantees also apply here.

Furthermore, according to the OGH, the Austrian regulation deviates from the EU legal framework. EU Directive 2019/1 (ECN+ Directive) only provides for an obligation to bear costs between authorities, not at the expense of affected companies. Therefore, the national provision in Section 35b(4), sentence 3 of the Austrian KartG exceeds the requirements of EU law.

The OGH therefore requested that the second half of this provision be repealed. It is possible to repeal only part of the text without rendering the remainder of the law incomprehensible or changing its meaning completely. If the provision were to be repealed, the costs would be borne in accordance with the general rules of Sections 55 and 52 of the KartG. According to these rules, reimbursement of costs depends on the outcome of the proceedings.

The appeal proceedings are now suspended until the VfGH reaches a decision (Section 62(3) of the VfGG). The VfGH must determine whether the provision violates constitutionally protected procedural rights and is therefore unconstitutional.

OGH 16 Ok 1/25w (OGH acting as antitrust court of last instance) (23 April 2025)