Usancen Blog
OGH: On the Delivery of Documents to the Court
Procedural LawGovernment authorities may only be called upon to provide documents to the court if a party is unable to obtain immediate document delivery and states and proves this fact in their application. However, an order for performance may not be issued. In ...
VwGH: Representation via citizen card of a minor
Administrative LawThe Austrian E-Government Act (E-Government-Gesetz, E-GovG) and the Identification Register Ordinance 2009 (Stammzahlenregisterbehördenverordnung 2009, StZRegBehV 2009) provide for the valid registration of the power of representation of legal repres...
Austrian Supreme Court: Joinders and Common Garden Areas
Procedural LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with determining if a part of a garden area belongs to the condominium property as a whole and if litigation in this matter requires a joinder of parties. T...
OGH as Cartel Court: Double Jeopardy for Sugar Cartel
Competition LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), in its capacity as the Supreme Cartel Court, has found anti-competitive conduct affecting the Austrian market by Nordzucker AG and Südzucker AG. Unlike the court of first instance, t...
GER: Dark Patterns in Trading Apps Are Illegal
Civil LawThe German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, hereinafter BaFin) has recently clarified on its website that the use of so-called dark patterns is not permitted. Dark patterns are features in apps...
OGH: Gift Offset to Be Clarified in Contentious Proceedings
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified: Even under the new Austrian inheritance law, offsetting of gifts must be clarified in litigation proceedings and not in probate court. In the original case, the decease...
OGH: Accident During Loading Not Subject to EKHG
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) again specified what is to be regarded as an accident during operation of a motor vehicle under the Austrian Railways and Motor Vehicles Liability Act (Eisenbahn-...
Google Fonts: Response by Google
Data Privacy LawIn a blog post dated 18 November 2022, Google responded to the wave of warnings resulting from the embedding of Google fonts. These recent events were the reason for the following statement. To begin with, Google explains that Google Fonts is a libra...
ECJ on Confidentiality Protection in Public Procurement
European LawIn its most recent ruling on public procurement, the European Court of Justice (ECJ) ruled as follows: Protection of confidentiality must be weighed against the requirement of transparency and effective judicial protection. National legislation requi...
GER: Whistleblower Protection Act Poised to Go into Effect
Corporate LawThe German Bundestag has passed the long-awaited new Whistleblower Protection Act (Hinweisgeberschutzgesetz) containing a number of significant amendments. The law is intended to improve the protection of whistleblowers against possible harassment or...
ECJ: Can Temp Workers Be Paid Less?
Labour LawThe European Court of Justice (ECJ) has ruled that temporary agency workers can only be paid less than permanent employees if any such unequal treatment is compensated for by means of a collective agreement. This is intended to ensure the overall pro...
OGH: Statute of Limitations for Return of Capital Contributions
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that claims for repayment based on the return of capital contributions may become time-barred after three years. The plaintiff company was the owner of a property with a pen...
OGH: No Restrictive Interpretation of Section 184 ZPO
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that the right to ask a question under Section 184 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) is not restricted to facts that lie only within the sphere of t...
Unjustified Pricing of the Vienna Semester Ticket Based on Residence
Civil LawRecently, the Vienna Regional Court for Civil Matters ruled that differing pricing for public transport tickets solely based on customers' main place of residence is contrary to the principle of equal treatment. The defendant (and appellant) runs a w...
Wirecard: Will Shareholders Be Left Empty-Handed for Good?
Civil LawThe action brought by a capital management company against the insolvency administrator of Wirecard AG for determination of damages claims to be added to the insolvency table continues to be unsuccessful. The Munich Regional Court I stated that claim...
ECJ: Parts of the EU Anti-Money Laundering Directive are Invalid
European LawOn 22 November 2022, the European Court of Justice (ECJ) declared parts of the EU Anti-Money Laundering Directive to be invalid. The provision that information on beneficial owners of companies registered in the EU must be available to the general pu...
GER: Entrepreneurial Status for eBay Sales
Civil LawIf a seller sells goods in several hundred auctions per year on the eBay internet platform, this constitutes a sustainable activity and is therefore considered an entrepreneurial activity for VAT purposes. In addition, the German Federal Fiscal Court...
EU Commission Updates Definition of ‘Relevant Market’
Competition LawThe EU Commission is updating its publication on the definition of the ‘relevant market’ (i.e. market definition) in competition law and has now presented a comprehensive draft. Many of the proposals are evidently based on proceedings against US tech...
OGH: Legal Recourse for Priority Claims in Insolvency
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof) has ruled that in deciding on the admissibility of legal action it is not important whether the claim is actually an insolvency claim or a priority claim against the insolvency estate (German term: Ma...
GER: BGH: No Annual Fee for Building Savings Contracts in Accrual Phase
Banking LawAnnual fees in the accrual phase of current building savings contracts (the German financial product is called Bausparvertrag) are illegal. This was the decision of the Senate of the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) r...
GER: BGH - General Terms and Conditions and Smart Contracts
Civil LawIn its decision XII ZR 89/21 from 26 October 2022, the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) dealt with civil law aspects of smart contracts. This ruling, which also bears relevance for Austria, deals with several fundamen...
OGH: Review of Bank General Terms and Conditions
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) considered a ‘fictitious consent’ clause of a bank's General Terms and Conditions (GTC). In a class action suit brought by the Austrian Consumers’ Association against a bank,...
Austrian Registration Act: Amendments and Details
Public LawWith Government Bill 1252 of Supplements XXVII GP, the Austrian Registration Act (Meldegesetz, hereinafter MeldeG) hasundergone a fundamental change in substantive content. On the one hand, the right of intersexual persons to an adequate designation ...
OGH: Trademark Law Can Take Precedence over Naming Law
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that the use of components of a registered trade mark is unfair if the parties to the dispute use the same surname and sell the same products. The managing director of the plaintiff pri...
OGH: Invalid Clauses in Fitness Studio Contracts
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has declared some clauses contained in the general terms and conditions of fitness studios to be invalid. Cancelation period ‘The membership agreement can be terminated in writing by ...
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