OGH: Interim Injunction Guidelines for School and Nursery Transfers

Jan 22, 2026 Benn-Ibler Rechtsanwälte

In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has delineated the criteria for granting an interim injunction pursuant to Section 381(2) of the Austrian Enforcement and Security Procedures Code (Exekutionsordnung, hereinafter EO), specifically concerning the termination of childcare and education contracts. The judgment centers on determining the circumstances under which a change of school or nursery may result in imminent, irreparable harm.

In the case at hand, parents had objected to both the termination of childcare contracts for their two children as well as their expulsion from the provider institution. While seeking an injunction, they asked that education and childcare services remain in place until the main case was fully resolved. They argued that removing their children from a familiar social and educational setting could cause significant harm to the childrens’ well-being.

Irreparable Harm’ required for interim injunction

The OGH has affirmed that such measures are permissible only when particular conditions indicate the likelihood of irreparable harm. This form of damage is present solely when loss cannot be remedied through monetary compensation or restoration to the original status is not feasible. The responsibility to demonstrate such risk rests entirely with the affected party; vague concerns or general statements regarding burdens do not meet this threshold.

Transferring between schools or nurseries constitutes a reasonable challenge

According to the OGH, transferring schools or nurseries is considered a reasonably foreseeable challenge and, by itself, does not amount to irreparable harm. Similarly, extended stays in the same institution or anticipated age-related transitions do not present particular risks unless there are additional circumstances that are specifically documented. For instance, substantiated evidence of significant health, psychological, or developmental risks—beyond the usual adjustment challenges—would be required.

In the case at hand, there was no proof of any unusual circumstances. In particular, as no modifications were necessary throughout the current academic year, there was no immediate concern regarding the timing.

7 Ob 164/25f (22 October 2025)