OGH: Painters May Remove Construction Rubble

May 12, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled in an action under competition law that a painting business may also carry out demolition work and collect and dispose of the resulting rubble. This is covered under trade licencing for painters.

The defendant runs a painting and decorating business. On his website, in addition to masonry work he offered his company’s services as follows:

‘During renovation, usually a lot of rubble and debris accumulates. We handle all removal work, keep noise and dust pollution within limits, and provide for removal and proper disposal.’

The plaintiff sought an injunction against the painter who offered to gather, accept, and remove rubble without a licence to do so – this being in breach of law within the meaning of Section 1(1)(1) of the Unfair Competition Act (Unlauterer-Wettbewerbs-Gesetz, UWG).

The OGH, however, did not see any obvious breach of law.

According to Section 24a (1) of the Austrian Waste Management Act 2002 (Abfallwirtschaftsgesetz 2002, hereinafter AWG), the collection and treatment of waste requires a permit from the governor of the respective Austrian province. However, under Section 24a Abs 2 Z 11 AWG there is an exception for individuals who, in the course of their business activities such as repairs, maintenance, or demolition work, take over waste from third parties in the course of performing their contracted work and demonstrably hand the waste over to an authorised waste collector.

Pursuant to Section 32(1)(7) of the Industrial Code 1994 (Gewerbeordnung 1994, hereinafter GewO), all traders may collect and treat waste without prejudice to waste management regulations. Pursuant to Section 32(1a) GewO, services usually provided by other trades may be performed if these complement one’s own services in a meaningful way. Regarding ancillary services from regulated trades, no more than 15% of a contract may consist of such services. The pertinent legal literature is unanimous in assuming that the ancillary right to waste collection according to Item 7 does not only refer to waste produced by a business itself, but also covers third-party waste.

The OGH therefore assumes that demolition work and/or the disposal of construction rubble by businesses as described above is permitted and legal.

In the absence of established case law there is in no unreasonable interpretation of the law by the defendant, which is why a request for injunctive relief under competition law was not justified.

OGH 4 Ob 48/23x (28.03.2023)