Usancen Blog
Austrian Supreme Court: More Gym Membership GTCs Quashed
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) once again ruled on the validity of clauses in the General Terms and Conditions (GTC) of fitness studios. The Austrian Association for Consumer Information (Verein für Konsumenteninfo...
Austrian Supreme Court on Power of Attorney in Third-party Pledging
Civil LawNo special power of attorney is required for third-party pledging; a generic power of attorney1 is sufficient. The third defendant granted his brother a general and unlimited power of attorney in a notarised deed which authorised the brother to repre...
ECJ: Italian Short-Term Leases Counter EU Law
European LawThe duty to collect information and the withholding of tax under Italian national law for short-term leases are in conformity with EU law. However, the requirement for non-residents to appoint a tax representative is not, according to the European Co...
VfGH: Interest-free Debt Moratorium Is Constitutional
Constitutional LawThe Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has rejected the request by 403 banks to review the law on the interest-free debt moratorium during the pandemic. Section 2 of Austrian Zweites COVID-19-Justiz-Begleitgesetz...
GER: German Federal Supreme Court on Psychological Shock Damages
Civil LawThe German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) is turning away from previous case law on claims for damages by next of kin in the case of psychological shock, instead allowing a medically tangible illness to suffice for the ass...
OGH: Circumvention transactions in the case of § 5 para 2 WEG
Civil LawSection 5 (2) of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) favours property owners by means of a 3-year period for the purchase of parking spaces. The purpose of the law requires that a purchase should not only cover the...
OGH Reiterates Ruling on Property Division
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has maintained its recent ruling on how to assess diminution in value in the case of gavelkind property division. Rather than using the property’s nominal market value free and clear ...
OGH on Duty to Warn in Work and Labour Contracts
Civil LawIf a breach of the duty to warn leads to the unusability of a product, the claim to payment shall also be forfeited if customers subsequently render that product usable at their own expense. If, on the other hand, the breach of the duty to warn only ...
HSchG: Austrian National Council Implements Whistleblower Directive
Public LawAs of last week (1 February 2023), the Austrian National Council (Österreichischer Nationalrat) has passed the Whistleblower Protection Act (HinweisgeberInnenschutzgesetz; hereinafter HSchG) and its associated amendments. This means that the long ove...
VfGH: Mandatory Pre-trial Detention Lifted Also for Serious Crimes
Criminal LawThe Austrian Constitutional Court (Verfassungsgerichtshof; VfGH) has overturned Section 173 (6) of the Austrian Code of Criminal Procedure (Strafprozessordnung; StPO) as unconstitutional. Even in the case of serious crimes, reasons for detention must...
VfGH Overturns Media Data Privilege
Data Privacy LawThe Austrian Constitutional Court (Verfassungsgerichthof, VfGH) has overturned the media’s privilege provided for in Section 9 (1) of the Austrian Data Protection Act (Datenschutzgesetz, DSG) as unconstitutional. Lawmakers are now required to adopt a...
OGH: Dynamic Search Ads Are Trademark Violations
Civil LawAn advertisement created by a third party that uses a specific trademark as a keyword does not violate the rights of the trademark’s owner only if and when viewed as a whole, it is reasonably simple for an averagely informed and reasonably observant ...
OGH Comments on Loan Bill Draft Re Senior Citizens
Civil LawMinisterial Bill Draft 236/ME XXVII GP is intended to amend the Hypothekar- und Immobilienkreditgesetz, hereinafter HIKrG (Mortgage and Real Estate Loans Act) with the intention to facilitate the provision of loans to senior citizens. In its current ...
Austrian Administrative Court: E-scooters Are Vehicles
Administrative LawOn September 7, 2021, a co-participant with an alcohol content of 0.68 mg/l in his breath drove a mini scooter with an electric drive, thereby violating Section 99 (1a) in conjunction with Section 5 (1) of the Austrian Road Traffic Act (Straßenverkeh...
OGH: Invalid Clause in Advisory Board Rights
Civil LawA foundation’s declaration which makes its scope ‘with regard to’ unspecified ‘staffing’ of the advisory board at least partly dependent on the legal interpretation of its users concerning the existence of violations of ‘mandatory provisions or inter...
OGH: Amendment of Terrorist Acts Bill
Criminal LawIn 2021, the European Commission criticised Austria's solution for implementing Directive (EU) 2017/541 (the Terrorism Directive) which deals with combatting terrorism. Consequently, new regulations for Section 287c of the Austrian Criminal Code (Str...
OGH: Graphological assignment sufficient for nuncupatio
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof) dealt with nuncupation according to Section 579 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), i.e., the confirmation of an individual’s last will and tes...
OGH: No Liability for Repeated Reporting of Criminal Offenses
Civil LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof) dealt with a claim under Section 1330 (2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). The plaintiff is a self-employed PR consultant who was convicted ...
GER: Bank Fees for Early Repayment Calculations Are Illegal
ZivilrechtBanks are not allowed to charge a separate fee for calculating early repayment penalties. This was the decision of the Higher Regional Court of Frankfurt am Main (OLG). Such calculations are part of a bank's secondary contractual obligations towards ...
ECJ: No Court Ruling Needed for Removal of False Google Search Info
European LawGoogle is required to delete links to websites if they contain provably false information. Anyone who wants to have entries in Google Search removed is therefore not required to first approach those responsible for putting any such information online...
Austria: 2023 Crypto Tax Ordinance in Force
Tax LawOn 1 January 2023, the Ordinance on the Tax Assessment of Cryptocurrencies (Verordnung zur Ermittlung der Steuerdaten von Kryptowährungen) came into force. If the exact crypto purchasing costs or the purchasing dates are not known to the withholding ...
OGH: Division In Kind prior to Inheritance Devolution
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof) recently dealt with the division of inheritance rights prior to devolution, taking into account previous gifts to heirs by the deceased. The plaintiff and the two defendants are the children and lega...
OGH: Can Party Membership Cause Discrimination?
Labour LawFor the very first time, the Austrian Supreme Court (Oberster Gerichtshof) has ruled on whether membership in a political party can constitute discrimination based on personal worldview. In the original case, the plaintiff had applied for the positio...
GER: Drugstore Cartel – Damages for Insolvent Schlecker?
Competition LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) ruled that if competitors secretly exchange information on price-setting vis-à-vis a joint customer, this underscores the experience in principle that prices that are subsequent...
OGH: Temporary Property Manager May Apply for Own Dismissal
Civil LawA property manager who was appointed by the court as a provisional caretaker under Section 23 of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) and who has acted in this capacity for the property owners' association may, upon...
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