OGH: No Interim Injunction for Administrative Compensation Claims

Feb 21, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that an interim injunction cannot be granted if the claim at issue can only be the subject of an administrative procedure and no judicial enforcement order is available.

In the case at hand, several property owners filed an application for an interim injunction against a property developer. The background to the case was a decision by the Upper Austrian Regional Administrative Court (Oberösterreichischer Landesverwaltungsgericht) which had allowed the property developer to carry out work on the property owned by the plaintiffs. Upon completion of the work, the property was to be restored as far as possible to its original condition.

The plaintiffs argued that trees, shrubs, and plants would not survive the uprooting and replanting, and that full restoration was not possible. There were concerns about financial loss and doubts that the developer could pay compensation later due to economic difficulties.

The court of first instance rejected the claim on the grounds that the action was not admissible because the claim was to be pursued through the administrative procedure. The Regional Court of Linz upheld the decision but permitted an appeal to clarify the legal situation.

The OGH declared the appeal admissible but unfounded. An interim injunction can only be granted for claims that can be enforced through the courts. This also applies if an administrative decision has been made, but an enforcement order must already exist.

In the present case, the claim for compensation under Section 15(6) of the Upper Austrian Building Regulations (Oö BauO) must be asserted exclusively before the building authorities.

As the plaintiffs were unable to prove the existence of an enforceable judgment or the jurisdiction of a court, an interim injunction was inadmissible. The OGH therefore confirmed the decision of the lower courts.

OGH 3 Ob 228/24m (22 January 2025)