OGH on the Issuance of Arrears Certificates

Jul 5, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has emphasised that a court must examine whether a creditor has the right to issue certificates of arrears in respect of the claim which is the subject of the respective proceedings.

In June 2023, a committee of the Austrian Bar Association (Rechtsanwaltskammer, RAK) issued an enforceable arrears certificate to recover an enforceable debt of more than EUR 60,000. The subject of the arrears certificate was the recovery of a disability pension wrongly drawn by the debtor (a retired lawyer) during the period from June 2020 to October 2022 as a result of his breach of his respective reporting obligations.

The court of first instance granted the plaintiff’s application to seize movable and immovable assets as requested. However, the application for attachment was dismissed by the court of appeal. The court was of the opinion that the committee did not have the power to issue the certificate of arrears and that the applicant should not have been granted the attachment. Section 28(1a) of the Austrian Lawyers’ Act (Rechtsanwaltsordnung, hereinafter RAO) authorises the issuance of certificates of arrears only in the case of outstanding contributions, but not for the recovery of benefits wrongly received.

The OGH confirmed this decision.

A statement of arrears is an ‘extract from financial records’ by which the respective public authority notifies of the status of outstanding payment obligations of a debtor. They are not official notices, but in the cases provided for by the law, statements of arrears can constitute an enforcement title.

Pursuant to Section 24 of the Articles of Association, Part A 2018, benefit payments made in error may be reclaimed from the issuing bar association. The fact that erroneously received benefits can be reclaimed does not make them ‘retroactive contributions’ within the meaning of Section 28(1)(d) of the RAO, and there is no legal basis for issuing a statement of arrears for the recovery of erroneously received benefits.

The court of appeals therefore correctly concluded that the statement of arrears dated June 2023 did not constitute a valid enforceable title owing to the missing legal basis.

OGH 3 Ob 78/24b (23 May 2024)