Usancen Blog
OGH: New Ruling on Loan Handling Fees
Civil LawOn 23 January, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) issued its first decision on complaints about handling fees for consumer loans. Its decision is a departure from previous case law. The Austrian Verein für Konsumenteni...
Austrian Court on Reimbursement of Representatives’ Costs
Civil LawThe Oberlandesgericht (Higher Regional Court) of the Austrian city of Graz has dealt with an appointed representative’s claims for reimbursement of costs. Even if an appointed representative is a lawyer themself, they may be represented by another la...
OGH: Is It a Business Trip?
Labour LawA per diem allowance is a lump sum payment intended to cover the financial expenses incurred by employees as a result of having to spend the day away from home. The plaintiff was employed by the defendant as a fitter. On Mondays, the plaintiff worked...
ECJ: Fingerprints on ID Cards Are Legal
European LawFingerprints can continue to be included on ID cards. This has been decided by the European Court of Justice (hereinafter ECJ). The encroachment on fundamental rights is justified. In 2021, a man applied to the German city of Wiesbaden for a new ID c...
GER: BGH on Penalty Clauses in Unit-Price Contracts
Civil LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has ruled that penalty clauses in construction contracts are generally permissible up to an amount of 5 percent. However, the amount must not be made in relationship to the orde...
GER: No Income Tax Liability on Loan Cancellations
Civil LawAccording to the German Federal Finance Court (Bundesfinanzhof, hereinafter BFH), receiving compensation for a consumer loan agreement after its cancellation does not trigger income tax. The couple in the case at hand had taken out a loan in 2008 to ...
OGH on the Formality of Gift Agreements
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has given a ruling on the formal validity of so-called ‘mixed gift’ agreements. According to Section 943 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter A...
OGH on Walls and Easements
Civil LawAny co-owner can defend themself against unlawful interference with their property by filing a lawsuit for freedom of property ownership. The prerequisite for this is that the interfering party is acting on their own authority. Since 2016, the plaint...
OGH: Withdrawal from Distance Purchases
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified when the right of withdrawal under Section 11f of the Austrian Distance Selling and Foreign Trade Act (Fernabsatz- und Auswärtsgeschäftegesetz, hereinafter FAGG) is cons...
EU Law to Better Protect Journalists
European LawThe European Parliament wants to give journalists and human rights defenders better protection against strategic lawsuits designed to silence them. This is to be implemented by means of the so-called Anti-SLAPP Directive, where SLAPP stands for ‘stra...
GER: DIE PARTEI’s Motion against Election Threshold Fails
Constitutional LawThe German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) has been approached by Die PARTEI (Party for Labour, Rule of Law, Animal Protection, Promotion of Elites and Grassroot-Democratic Initiative[1]), which is challeng...
GER: BGH on Creditors’ Unfavourable Intentions
Civil LawA creditor’s mere hope that their debtor will be able to pay all open debts in the near future is not sufficient to prove the opposite of the debtor’s presumed intention to disadvantage the creditor, according to the German Federal Court of Justice (...
Austria: New Rules for Tree Owners
Civil LawThe Austrian Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) wants to put tree owners’ liability on a new footing and has recently prepared a ministerial draft which has now been submitted to the Austrian parliament. Until now, the Au...
Trespass: Demand Letters from Lawyers Only
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that businesses commercially assisting their clients in making out-of-court claims for trespassing constitutes an unjustified interference with lawyers’ right to represent c...
GER: Apparent Legality of Sacked Managers
Civil LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has ruled: As long as a managing director is registered in the commercial register it’s safe to assume that the manager’s power to represent a company is valid. Anything to the ...
ECJ: Access to Harmonised Standards for All
European LawA recent European Court of Justice (ECJ) ruling has caused uncertainty. EU standards, which define how products should work, fall under EU law. Therefore, they must be freely and publicly available to EU citizens. The implications of the ruling could...
OGH: Deductions for Working too Fast?
Labour LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has provided the following clarification: Employers are liable for lost working time caused by an employee working too fast if the employee’s working time is contractually limited to ...
OGH: Safety Requirements for Ropes Courses
Civil LawThe scope and strictness of safety requirements depend primarily on how well users can identify and counteract potential hazards. The plaintiff was a visitor to the defendant’s high ropes course. Before using the course, all visitors are required to ...
ECJ Considers Immaterial Damages under GDPR
European LawArticle 82 of the GDPR is not punitive, but compensatory. Compensation in money should be a full compensation for the actual damage suffered. The plaintiff was the purchaser of an electrical household appliance in the defendant’s store. The plaintiff...
OGH: Misleading Data Transmission Speed Adverts
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with an internet service provider advertising maximum data transmission speed that was, in reality, far from the actual speed. On the defendant’s website, t...
OGH: Is Section 1159 ABGB Unconstitutional?
Constitutional LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has asked the Austrian Constitutional Court (Verfassungsgerichshof, VfGH) to declare unconstitutional the new termination provisions of Section 1159(1) to (4) of the Austrian Civil Co...
OGH: Landlords Must also Maintain Radiators
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that landlords’ recently stipulated new obligation to maintain ‘heating installations’ under Section 3(2)(2a) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter ...
GER: More Funding for New Climate-Friendly Housing
Civil LawThe funding programmes of the German Federal Housing Ministry are finally back on track. Starting date is 22 February 2024. The German federal government’s funding programmes came to an abrupt end in December 2023 when the funding volume was complete...
TikTok Remains Gatekeeper – Appeal against EU Fails
European LawUnder the EU’s Digital Markets Act (DMA), ByteDance Ltd, which operates the TikTok video portal, recently applied to suspend the EU Commission’s decision to designate TikTok as a gatekeeper, but failed. The DMA is an EU regulation aimed at ensuring f...
Phased Return, Full Extra Benefits
Labour LawA phased return to work after absence under Section 13a of the Austrian Act on the Adaptation of the Law on Employment Contracts (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG) is not considered to be a partial sick leave, but instead means that the ...
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