OGH: Mayor’s Interview on Vacancy Tax Is a Personal Matter

Oct 21, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that an interview by a mayor on the issue of vacancy taxes does not open the scope of application of the Amtshaftungsgesetz (Liability of Public Bodies Act, hereafter referred to as AHG).

In 2020, the defendant, the mayor of the Tyrolean city of Innsbruck, gave an interview in front of a residential building built by the plaintiff company. In the course of this interview the mayor stated, among other things, that ‘of 173 flats in this building, more than 90 flats, i.e. about half of the flats are vacant.’ The interview was part of an ongoing political discussion about the introduction of a vacancy tax in Tyrol. For this purpose, the City of Innsbruck had conducted a vacancy survey.

The plaintiff considered the mayor’s statement to be a credit-endangering under Section 1330 of the Austrian Civil Code, ABGB.

The defendant countered that as mayor he had acted in the public interest.

The lower courts dismissed the action because ordinary legal action was inadmissible pursuant to Section 9 (5) AHG. The mayor had acted in implementation of the law.

However, the Austrian Supreme Court did not share this view.

As far as interviews by politicians are concerned, the Supreme Court requires a close internal and external relationship to specific official matters. In the case at hand, the Supreme Court examined in detail whether the matter of a vacancy tax falls within the authority of the mayor of Innsbruck. In the result, the court answered in the negative. The power to introduce a vacancy tax lies with the Tyrolean state legislature. However, even if the mayor had participated in the drafting of the bill by collecting data on vacancies (which is the legislature’s responsibility), the AHG does not apply. The drafting of bills is a purely internal administrative process, so there is no obvious reason for the mayor to inform the general public about this.

In summary, the purpose of the mayor’s interview was to assert a political call and is thus to be considered as part of the mayor's area of privacy. Therefore, due process of law is permissible.

OGH 1 Ob 80/22d (14 September 2022)