Usancen Blog
DE: Diesel scandal - mandatory top-up for better replacement model
Civil LawThe German Federal Supreme Court (Bundesgerichtshof, BGH) once again had to address a buyer's claim for supplementary performance with regard to a defective new vehicle due to an inadmissible deactivation device. In response to the decision as to whe...
DE: The ERP Economic Plan Act 2022
Public LawTo strengthen the German economy, the Bundestag has now passed the European Recovery Program (ERP) Economic Plan Act for the calendar year of 2022. Funding for small and medium-sized enterprises is to be significantly increased, thus facilitating opp...
OGH: On the repayment of debts in enforcement proceedings
Civil LawClaims under the law on bills of exchange against the payee become time-barred within three years from the expiry date; this period also applies to the payee's bill drawer. In the present case, the plaintiff granted the drawee an advance on current a...
ECJ: Applicability of the Air Passenger Rights Regulation for stopovers in EU
European LawThe European Court of Justice (ECJ) has ruled that the EU Passenger Rights Regulation (Regulation No. 261/2004) does not apply if a flight is operated with an EU airline, but a landing at an airport in the EU is merely a stopover of a journey from on...
OGH: Liability of an auditor for investor dispositions
Corporate LawAn aggrieved investor has to claim and prove that he made his investment decision in reliance on the auditor's report and that he used it as the basis for his disposition which resulted in damages. The plaintiff invested EUR 13 million with a stock c...
OGH: Materiality threshold in case of potential immaterial damages
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of when the materiality threshold for an interim injunction under Section 381 number 2 second case of the Enforcement Order (EO) is overcome in the ca...
DE: Holiday compensation claim as obligation of the insolvency estate
Civil LawAccording to the German Federal Labour Court (Bundesarbeitsgericht, BAG), a claim for unused holiday pay in the full amount is classified as an obligation of the insolvency estate if a strong provisional insolvency administrator still claims the empl...
DE: New law for fair consumer contracts
Civil LawThe Fair Consumer Contracts Act aims to make it easier for consumers to opt out of contracts that are typically longer term, such as smartphones, streaming services, fitness studios or electricity and gas supply. Above all, new regulations were creat...
OGH: Data processing in a teacher evaluation app is permissible after all
Öffentliches RechtIn this case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the question of prohibiting the processing of personal data in the course of evaluations of a teacher. The plaintiff is a teacher at an HTL (a Higher Technical Education In...
OGH on the obligation to inform about cancellation fees (§ 27a KSchG)
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that a contractor pursuant to Section 27a of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG) must also inform the consumer about any potential savings resulting from not carryi...
OGH: Right to refuse performance in case of defects in common areas
Civil LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of the extent to which a right to refuse the performance by two co-owners of a property affects common areas. The defendants acquired condominium owne...
Information on the EAG amendment 2022
Public LawAn amendment to the Renewable Energy Expansion Act (Erneuerbare-Ausbau-Gesetz, EAG) recently came into force. According to the committee report, the changes are mainly due to requirements resulting from the European Commission's notification procedur...
DE: International jurisdiction in the case of a flight booking
Civil LawIn the case of an outbound and return flight agreed as a single service, the place of departure is the relevant destination for the place of jurisdiction. According to the German Federal Supreme Court (Bundesgerichtshof, BGH), the agreement of a sing...
OGH: Criticism of Corona measures alone does not constitute a worldview
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that a dismissal is in principle permissible if the employee is dismissed because of her critical attitude towards the COVID-19 measures and her refusal to wear a mask. In the case at h...
OGH: Pro forma declarations do not establish entrepreneurial status
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the international and local jurisdiction of a case pending in Switzerland between an alleged consumer and an entrepreneur. The defendant operates a business system...
OGH: No expropriation in case of designation as flood hazard zone
Public LawAccording to the Austrian Supreme Court (Oberster Gerichtshof, OGH), the mere designation of a property as a hazard zone for a 100-year flood and as a “red-yellow functional area” in the water law hazard zone plan does not constitute an encroachment ...
OGH on the misleading nature of a company name
Corporate LawIf companies are located in the same place or the same municipality, the distinctiveness as a question of the concrete capacity to mislead is not to be examined according to Section 18 para 2 of the Austrian Commercial Code (Unternehmensgesetzbuch, U...
DE: On the disadvantage to creditors in the case of double collateralisation
Civil LawIf a third party's claim is secured by a shareholder, the shareholder must give priority to satisfying the third party in the event of insolvency. Otherwise, the shareholder disadvantages the creditors if he is released from his guarantee due to the ...
OGH: Reference to court decision does not harm revocation
Civil LawA revocation of an untrue, reputation-damaging factual allegation under Section 1330 para 2 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) must be declared by the infringer himself. However, the voluntary nature of the...
OGH: Compensation for total loss in the lack of intention to replace vehicle
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether the owner of a motor vehicle that has been totalled in a traffic accident can claim compensation from the liable party in the amount of the...
OGH: Claim for debt interest in case of pandemic deferral unlawful
Civil LawWith the COVID-19 Judicial Accompanying Act (COVID-19-Justiz-Begleitgesetz, COVID-19-JuBG), the legislator has created a deferral regulation for consumer loans in order to prevent borrowers from becoming over-indebted in the form of a double burden d...
OGH on the "order at best" in online trading
Civil LawIn the case of online trading, the bank is not obliged to consult the customer if the order is clear, unless the customer indicates that he only wants the order to be executed if there are sufficient funds. The plaintiffs used the defendant's online ...
DE: Insurance recourse - damage caused by third parties
Civil LawAn employer is only liable to the accident insurance company in the event of an accident at work of his employee if he or one of his organs can be accused of having caused the accident intentionally or through gross negligence. According to the Germa...
DE: Dissolution of a GbR: When does company debt become statute-barred?
Civil LawThe claim for repayment of an unused advance on any lawyer's fees comes into existence subject to the condition precedent of receipt of the advance payment. In the event of the dissolution of the partnership under civil law (Gesellschaft bürgerlichen...
Sbg: Secondary residence and vacancy tax under review
Public LawThe provincial government of Salzburg has sent its draft of the so-called "Secondary Residence and Vacancy Tax Act" („Zweitwohnsitz- und Wohnungsleerstandsabgabengesetz“, ZWAG) for review. The ZWAG authorises the municipalities to levy a municipal ta...
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