Usancen Blog
OGH: Broker's Commission also Due in Share Deals
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the sale of shares in a company can be a transaction equivalent to the sale of real estate and could therefore justify a broker’s commission. Two cousins were limit...
OGH on Data Protection Clauses in GTCs
Data Privacy LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has declared several data protection clauses in a pay TV providers’ general terms and conditions to be invalid. Data transmission for address matching In an email, the defendant had s...
GER: Trespass to Chattels in ‘Cash & Drive’ Scheme
Civil LawThe collection of a vehicle by a lessor constitutes trespass to chattels, even if the lessee is in arrears. If the vehicle is subsequently sold by the lessor, the lessor is obliged to compensate the lessee for the value of the vehicle, according to t...
GER: Works Council Chairs Can’t Double as Data Protection Officers
Labour LawThe position of works council chairperson precludes additionally performing the duties of data protection officer. For this reason, employers are permitted to revoke the appointment of data protection officers, according to the German Federal Labour ...
OGH: No Official Liability for Commerzialbank Liquidator
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that no official liability exists on the part of the banking supervisory authority towards Commerzialbank Mattersburg in Burgenland, Austria, and thus towards the liquidator...
OGH: No Water-Rights Permit, No Usucaption?
Administrative LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified: A lacking water-rights permit pursuant to Article 10(2) of the Austrian Water Act 1959 (Wasserrechtsgesetz 1959, hereinafter WRG) does not prevent usucaption of a water...
ECJ AG: Austrian Communications Act Contrary to EU law
European LawIn his opinion, the Advocate General (AG) of the European Court of Justice (ECJ) is of the opinion that the Austrian Communications Platforms Act, which is part of a package of laws intended to counter online hate, violates EU law. In the original pr...
OGH: Unfair Competition after Concealment of Circumstances
Competition LawDoes the claim ‘The brand most recommended by the leading dishwasher manufacturers’ constitute unfair competition? This was the question to be decided by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) after a manufacturer of dishw...
GER: Driving Licence Revoked after DUI on E-scooter
Criminal LawRiding an e-scooter under the influence of alcohol creates a presumption of unsuitability for driving a motor vehicle. Driving licenses are not revoked only in certain exceptional cases. According to the German Higher Regional Court of Frankfurt am M...
OGH: COFAG Subsidies Are Garnishable
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that COFAG1 subsidies are, in principle, garnishable. In the original case, the court of first instance had granted the petitioning energy supplier, among other things, the ...
ECJ: Environmental Impact Assessment Thresholds
European LawThe European Court of Justice (hereinafter ECJ) has ruled that environmental impact assessments for urban development projects do not depend exclusively on the size of such projects. EU law precludes threshold values if they are set so high that, in ...
OGH on Repayment of Loan Processing Fees
Civil LawAccording to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), the clause used by a credit institution to exclude the repayment of processing fees in the event of early repayment of a loan is neither unlawful nor grossly disadvantag...
ECJ: No Cancellation Info, No Money
European LawEven after a service has been fully provided and an invoice has been issued, the customer does not have to pay: According to the European Court of Justice (hereinafter ECJ), if a company forgets to inform their consumer about the consumer’s right of ...
BGH: No Compensation for Flights That Were Operated
European LawThe requirements listed in Art 4 para 3 of the Passenger Rights Regulation are not fulfilled if a passenger was actually transported on a scheduled flight. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), this also ...
‘Flexible Capital Companies’: Austrian Company Law Newbies
Corporate LawThe Austrian Federal Ministry of Justice has recently submitted for review its draft of the long-awaited Company Law Amendment Act 2023. Alongside changes to the law on limited liability companies (GmbH), the bill also contains a new legal structure ...
OGH: No Insurance Event When Moving a Sailplane
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has commented on the waiver of liability in insurance policies with regard to damage arising from the use of an aircraft. A household and homeowner’s insurance contract exists between...
ECJ: The Right to ‘a Copy’ under GDPR
European LawThe European Court of Justice (ECJ) has clarified that under the right to information pursuant to Article 15 of the General Data Protection Regulation (GDPR), copies of entire documents may have to be provided. In the original case, the complainant h...
OGH Voids Ambiguous Clause in Tenancy Agreements
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has repealed a clause according to which a landlord’s duty of proper maintenance does not apply if the tenant or persons attributable to the tenant are at fault for causing damage. Th...
GER: Undated Documents Are ‘Not Served’
Civil LawA delivery date on the envelope of a court document to be served is a mandatory requirement for performance of service. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), if a mail carrier does not write the delivery ...
GER: Director’s Liability in a Managing Limited Partner GmbH
Corporate LawIn principle, the managing director of a managing limited liability company of a German GmbH & Co. KG is answerable in the event of negligent management for the damages incurred by the limited partnership. This is also true if running the limited par...
ECJ: Compensation for Cancelled Flight Due to Co-Pilot’s Death
European LawThe cancellation of a flight due to the unexpected death of the co-pilot does not exempt the operating air carrier from its compensation obligation towards the passengers. This was decided by the European Court of Justice (hereinafter ECJ), citing th...
GER: No Negative Interest on Promissory Note Loans
Civil LawAccording to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), the legal model of loan regulations does not recognise negative interest. A claim for payment does not exist even for promissory note loans if an upper interest limit...
OGH: Valuation of Gifts in Austrian Inheritance Law
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified: In the valuation of a gift pursuant to Section 788 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), any investments in the gifted asset previously made by th...
OGH on Deposit Insurance for Trust Accounts
Banking LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that in the case of multiple-party trust accounts, all trustors are to be considered as depositors for the purpose of deposit insurance. The first and second plaintiffs ...
Virtual Shareholders’ Meetings Here to Stay
Corporate LawThe Ministry of Justice’s (Bundesministerium der Justiz) draft on virtual meetings of joint-stock companies was submitted for review until 26 May 2013. Virtual shareholders’ meetings, which were introduced as a temporary solution during the Corona pa...
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