Usancen Blog
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 ...
OGH: Summer Use of Winter Season Passes
Civil LawThe settlement of a claim for a monetary refund by offering and accepting a substitute service constitutes a service in lieu of payment within the meaning of Section 1414 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter AB...
Product Liability: What Damage Is Recoverable?
ZivilrechtThe right to compensation under the Austrian Product Liability Act (Produkthaftungsgesetz, hereinafter PHG) only covers damage to legal interests that are absolutely protected, in so far as this can be attributed to the defective product. Pure financ...
GER: ‘Garage Risk’ – What Vehicle Repair Costs Are Covered?
Civil LawThe victim of a road traffic accident has the right to take their damaged vehicle to a garage for repair and then to claim compensation from the party responsible for the accident. According to the German Federal Court of Justice (Bundesgerichtshof, ...
State Aid: Unlawful COVID-19 Aid for KLM
European LawIn the legal battle over State support during the COVID-19 pandemic, Ryanair has won a victory. During the pandemic, many airlines received payments in the form of State aid. Now, once again, the European courts have had to deal with the legality of ...
Is Scratching a Car’s Paint with an Iron Shovel an Accident?
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with the definition of an accident as used in insurance contracts. An accident is an event that takes place suddenly and directly from the outside by means of mechanical force. ...
Supreme Court on Terminating Caretaker Contracts
Labour LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with terminating a caretaker contract, ruling that landlords can only terminate such contracts for serious reasons if the caretaker is entitled to employee housing. The plaintif...
OGH on Right of First Refusal for Condominiums
Civil LawThe right of first refusal (ROFR) and right of repurchase are legally invalid according to Section 38 (1) no. 3 of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) if these rights are capable of nullifying or unreasonably restr...
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