Usancen Blog
OGH: Easement for Condominium Access
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that condominium owners may not register an easement in the land register under which they grant each other an exclusive and perpetual right of use for access to their apart...
OGH: Jurisdiction for Software Contracts Needs Clarification
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has asked the European Court of Justice (hereinafter ECJ) to clarify where the ‘place of performance’ as defined in Article 7(1)(b)(2) of Regulation (EC) 1215/2012 on Jurisdiction an...
When Can Legal Expenses Insurance Refuse Coverage?
Civil LawThe likelihood of success of the intended claim determines whether legal expenses cover will be granted. Coverage cannot be refused if the legal action has a reasonable prospect of success. In the coverage proceedings, the plaintiff sought coverage u...
OGH on Tenancy Termination Restrictions
Civil LawThe ground for termination as provided under Section 30(2)(5) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG) does not apply if there is a balanced use of an apartment, residentially and for business purposes. In 1965, the defendant’s...
OGH on Alterations in Co-owned Buildings
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that changes to common parts of a house which are exclusively in the interest of one single co-owner do not constitute ‘property management measures’. The defendant and his ...
Austria Toughens Criminal Law on Corruption
Criminal LawIn order to effectively advance the fight against corruption, the Austrian National Council has tightened the criminal law on corruption. The Anti-Corruption Criminal Law Amendment Act 2023 (Korruptionsstrafrechtsänderungsgesetz 2023, hereinafter Kor...
GER: Must Landlords Allow Subletting to Refugees?
Civil LawDoes a landlord have to allow a tenant to take in a refugee? The Berlin Regional Court has ruled: Yes, they do. Anyone who wants to take in refugees has a claim against their landlord for permission to sublet. Since the beginning of the Russian attac...
GER: Must Tenants Respond to Termination Notice?
Civil LawThere is no reason to sue for future eviction simply because the tenant remains silent as to whether they will actually leave the premises upon termination of the commercial lease, according to the German Federal Supreme Court (Bundesgerichtshof, her...
OGH: Credit Brokers Must Inform
Civil LawWhat are the consequences of a credit broker failing to provide proper information about the credit broker’s commission? This was decided by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The claimant had arranged a loan for the ...
OGH: Liability of GmbH Shareholders for Notary Fees
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the mere approval of a resolution to increase a company’s capital does not lead to the joint and several liability of shareholders for notary fees. The plaintiff, a...
VwGH: When Is a Hearing Necessary?
Administrative LawThe Austrian Supreme Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has confirmed its case law on the holding of oral hearings before administrative courts. An oral hearing is required in cases where the findings are specifically dis...
VfGH on Climate Protection: No Right to Heating Oil Ban
Constitutional LawThere is no subjective right to issue an ordinance banning the sale of fossil fuels and heating oil, the Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has confirmed. The environmental organisation GLOBAL 2000 was one of tho...
GER: Antitrust Fines: Are Managers Personally Liable?
Competition LawManaging directors are not personally liable for cartel fines imposed on a company. This was recently confirmed by the German Duesseldorf Higher Regional Court. There are separate rules on fines in the provisions of cartel law, the court says. The de...
OGH: Right to Information of Heirs
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the requirement to provide certain information is fulfilled when formally complete information has been provided. The fact that an individual involved, such as the ...
GER: BAG - Minimum-Wage Liability of GmbH Managers
Labour LawAccording to the German Federal Labour Court (Bundesarbeitsgericht, hereinafter BAG), managing directors are not liable if an employee is not paid their statutory minimum wage. The penalty provisions of the German Minimum Wage Act (Mindestlohngesetz,...
OGH on Formal Requirements for Testamentary Dispositions
Civil LawFailure to observe proper legal form leads to the invalidity of testamentary dispositions, even if the testator’s intention is clear and can be unequivocally proven. However, the principle of respecting a testator’s true intention has its limits when...
GER: Loan Agreements: Are You Liable for Your Ex’s Car Loan?
Civil LawEven though she is financially unable to cope, a young woman was to be held liable for her ex-boyfriend’s car loan. The immorality of such a loan agreement was recently established by the Oldenburg Higher Regional Court. In the case at hand, a young ...
Are You Liable for Tagged Posts on Instagram?
Civil LawThe operator of an Instagram page may be liable for the fact that tagged posts by third party users violate the Austrian Fair Trading Act. According to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), anyone who links their page to...
OGH: Rights of Austrian Owners’ Associations
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified: For the active legitimacy of a condominium owners’ association with regard to an assignment of claims, only the effective assignment is relevant. Internal decisions by ...
OGH: Bad Faith and Building on Third-Party Plots
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified its case law on the original acquisition of land under Section 418 sentence 3 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The pla...
VwGH: Wrong Addressee May End in Repeal without Substitution
Data Privacy LawThe Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled that it is legitimate for the Federal Administrative Court (Bundesverwaltungsgericht, hereinafter BVwG) to revoke a decision if it is found that the person to whom...
OGH: No Official Liability for Unlawful COVID Regulations
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that there is no official liability for unlawful COVID 19 regulations. The Minister of Health did not act in a culpable manner. The plaintiff was a street paper vendor. Duri...
GER: National Legal Protection: Intra-EU Investor/State ICSID Arbitrations
European LawIn principle, national courts cannot subject ICSID arbitration proceedings to a preliminary review. However, the German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has now ruled that EU Member States can claim upstream national lega...
ECJ on Notifications ahead of Mass Dismissals
Labour LawThe European Court of Justice (ECJ) has ruled that failing to send a copy of a written notification to the competent authority (in this case, the German employment agency, Agentur für Arbeit) that collective redundancies are imminent does not constit...
GER: BGH on the Public Nature of the Commercial Register
Corporate LawThe information contained in the electronic commercial register at www.handelsregister.de is public. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), the register is a reliable and freely accessible source of inform...
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