Usancen Blog
GER: Ne bis in idem – Justice or Legal Certainty?
Constitutional LawOnce you have been legally acquitted, you do not have to worry for the rest of your life that your case will be reopened if there is new evidence. This controversial provision of the 2021 German Criminal Procedure Code has now been declared unconstit...
GER: Charges for Early Loan Repayment
Civil LawAccording to the Higher Regional Court of Frankfurt am Main, so-called flat-rate bank charges in connection with early loan repayments can only be applied if consumers are given the opportunity to show that the bank has suffered lower or no damages. ...
ECJ on Pilot Pay: Equal Treatment = Unequal Treatment?
European LawAccording to the European Court of Justice (ECJ), part-time employees are unfairly disadvantaged if they have to work the same number of hours as their full-time co-workers for additional pay. This constitutes unlawful discrimination. A German pilot ...
OGH on Recovery for Non-Payment of Debt
Civil LawAnyone who pays a non-debt in error can reclaim the amount paid under Section 1431 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The prerequisite for this is that the erroneous payment was the result of a...
ECJ: Compensation after Denied Boarding
European LawPassengers are entitled to compensation under the Air Passenger Rights Regulation (Regulation 261/2004) if the airline denies them boarding on a return flight, even if they do not arrive at the airport on time. This has recently been decided by, amon...
OGH: Risk Exclusion in Legal Expenses Insurance
Civil LawA clause in the general terms and conditions of a legal-expenses insurance policy has been declared invalid by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The Austrian Association for Consumer Information (Verein für Konsument...
GER: Binding Gift-Tax Valuation
Public LawIf the value of a property is determined separately, it is binding for all subsequent gift tax assessments. According to the Federal Fiscal Court (Bundesfinanzhof, hereinafter BFH), if the donee considers the assessment to be too high, they must appe...
ECJ: Third-Party Liability for E-Bikes?
European LawBicycles with their e-motor only used to assist in pedalling, and a boost function that can only be activated by muscular effort do not fall within the definition of ‘vehicle’ as used in the EU’s Motor Insurance Directive. The original case before a ...
OGH: Duty to Provide Legal Fee Info
Civil LawSection 5a(1)(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, hereinafter KSchG) obliges traders to inform consumers of the total price of the goods or services ‘in a clear and comprehensible manner’. This obligation to provide i...
ECB: Digital Euro Prep Phase Begins
European LawFuture-proofing the currency: The European Central Bank (ECB) takes the next step towards the ‘digital euro’ alongside cash. National central banks and the ECB have been working on digital central bank money for some time. The research phase of the p...
Austria: COFAG Partly Unconstitutional – Continued Disbursing
Constitutional LawThe Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has declared parts of the legal basis of the COVID-19 Financing Agency of the Federal Government GmbH (COFAG) to be unconstitutional. However, payments can continue for th...
OGH: Criminally Obtained Assets and Insolvency
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently clarified that payments which a debtor has obtained through criminal acts are legal acts to the detriment of the creditors and can therefore be subject to contesting unde...
GER: No State Funding for Right-Wing Foundations under New Bill
Public LawAnti-constitutional foundations shall no longer be funded by the state according to the will of the German government coalition. A corresponding bill, the Foundation Financing Act (Stiftungsfinanzierungsgesetz, StiftFinG), is now to be discussed in t...
Condominium Owner Builds on Common Elements
Civil LawChanges to general parts of a property may not be made without the consent of the other condominium owners. Unauthorised alterations can be challenged by means of actio negatoria (action for the denial of another’s right) under Section 523 of the Aus...
OGH on Statute-Barred Claims
Civil LawThe limitation period for claims for damages has recently been addressed by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The three-year limitation period pursuant to Section 1489 of the Austrian General Civil Code (Allgemeines ...
Austrian Government Bill: Freedom of Information Act
Public LawThe obligation to maintain official secrecy has been explicitly enshrined in the Austrian Federal Constitution. A new government bill now aims to abolish official secrecy and increase government transparency. To this end, the Austrian Federal Constit...
Global Framework: A World without Harm from Chemicals
Public LawThe Bonn Declaration on Sustainable Chemicals and Waste Management is sending a strong political signal. The international community has adopted a new global framework at the Fifth World Chemicals Conference, and high safety standards will now applie...
ECJ: Right to Cancel after Free Trial Period?
European LawThe European Court of Justice (ECJ) has been asked to rule on the right of withdrawal for subscriptions to learning platforms. Subscriptions often become payable if consumers do not cancel within the free trial period. So the question comes up: Can c...
GER: Custodial Fee Clauses Effective – Consumer Advocates Fail
Civil LawA German consumer advocacy organisation was recently defeated in court by a commercial bank. The penalty interest clauses in the bank’s pre-formulated GTCs for customers with savings deposits are neither non-transparent nor surprising, a German court...
OGH on Rent Cuts during Pandemics
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that government interventions affecting the general public do not justify rent reductions. The burden of proof for the lack of usability of the property, which would jus...
Unlocked Terrace Door – Is It Covered by Insurance?
Civil LawLeaving the house with the terrace door unlocked for several hours does not always constitute gross negligence, according to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). If it is a single incident, it cannot be considered gross...
Disability or Illness? OGH Explains the Difference
Labour LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the difference between illness and disability. Illness is not in itself a ground for discrimination. The plaintiff was employed by the defendant as a delivery driver. Du...
OGH: Liability for Cycling Accidents on Mountain Bike Trails
Civil LawThe liability of road owners according to Section 1319a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) also applies to mountain bike trails. The contractual assumption of maintenance establishes joint ownership. Th...
OGH Rules on Health Insurance Terms
Civil LawThe validity test pursuant to Section 864a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) states that objectively unusual and surprising clauses in GTCs do not become part of a contract. What matters is whether the...
ECJ: National Courts May Advise about Cancellation Rights
European LawUnder the EU’s Package Travel Directive, travellers have a right of withdrawal in special circumstances and may be entitled to a refund of all sums paid. However, if travellers are not aware of their right to cancellation, national courts may be unde...
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