OGH on COVID Costs, Price Updating

Mar 10, 2023 Benn-Ibler Rechtsanwälte

If Austrian industrial standard ÖNORM B 2110 is to be applied, pandemic-related additional costs may be passed on to the client. If additional costs are claimed, proof of any such costs must be submitted under Section 1168 (1) sentence 2 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). Simple price updates for a given period are not proof of actual costs.

The plaintiff was commissioned to carry out construction work on a bridge through a public invitation to tender issued by the defendant. In their final invoice, the plaintiff charged additional costs incurred due to the COVID 19 pandemic. These included, for instance, the costs of purchasing protective masks and booking single rooms instead of double rooms for the workers. However, these additional costs had not been recorded specifically for each construction site and were the result of building-material purchases made based on need.

The court of first instance dismissed the claim for additional costs because the plaintiff did not meet the burden of proof as stipulated in Section 1168 (1) sentence 2 ABGB, as he provided cost information based only on some abstract calculations. However, while the Court of Appeal took a different view, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) ruled as follows:

If a contractor is shortened by circumstances caused by the client, the contractor is entitled to appropriate compensation. Any neutral risks, however, are the contractor’s responsibility. When applying ÖNORM B 2110, circumstances caused by the pandemic must definitely be dealt with by the client. However, ÖNORM B 2110 only qualifies the statutory provisions. Some legal scholars argue that contractors are not required to prove that they suffered a disadvantage, since Section 1168 (1) sentence 2 ABGB is not about compensation, but about claims for remuneration. According to a different line of argument, compensation would only be justified if the contractor was short-changed. Referring to earlier case law, the OGH once again stated that the construction delay had to have been the reason for additional costs. Since the plaintiff's argument was only based on abstract information and a general price update, the OGH ruled that the partial ruling of the court of first instance regarding the additional costs and thus the dismissal was to be restored.

OGH 6 Ob 136/22a (21.12.2022)