OGH: Is Section 1159 ABGB Unconstitutional?

Mar 15, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has asked the Austrian Constitutional Court (Verfassungsgerichshof, VfGH) to declare unconstitutional the new termination provisions of Section 1159(1) to (4) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) as amended by BGBl (Bundesgesetzblatt, Federal Law Gazette) I 2017/153.

According to Section 1159(2)(3) and (4)(3) of the ABGB, different periods and dates of notice may be agreed by collective agreement in industries in which seasonal work predominates within the meaning of Section 53(6) of the Austrian Labour Constitution Act (Arbeitsverfassungsgesetz).

The OGH considers this provision to be unconstitutional on two grounds:

First, the regulation violates the principle of legality (Art. 18 of the Austrian Federal Constitution). This is because the exemption provision depends on the interpretation of undefined terms (‘sectors’, ‘predominance of seasonal businesses’). The OGH had previously ruled that the parties to a collective agreement can only determine the existence of these conditions declaratively, but not normatively. This is because the ‘predominance of seasonal businesses’ is a factual prerequisite for the parties’ right to regulate. Determining whether these conditions are met requires the collection and evaluation of relevant data. A purely selective approach (e.g. in relation to the date of the conclusion of the collective agreement) is not sufficient, as ‘predominance of seasonal businesses’ requires a certain longer temporal dimension. However, these conditions can change at any time – and in a way that is unforeseeable for the person subject to the law.

In addition, the provision is contrary to the principle of equality. The authorisation applies to an entire sector where seasonal businesses predominate. Different cancellation rules can therefore be applied to businesses that are part of the sector but are not themselves seasonal businesses. However, this means that there is no objective justification for intervening in the cancellation rules, as such businesses do not have to deal with the same burdens (uncertainties) as seasonal businesses.

The VfGH will then have to decide on the annulment.

OGH 9 ObA 38/23p (14 February 2024)