Usancen Blog
OGH: Unrestricted freedom of use by co-owners in case of common areas
Civil LawFor unrestricted freedom of use (“Freiheitsersitzung”) according to Section 1488 of the Austrian General Civil Code (Allgemein Bürgerliches Gesetzbuch, ABGB), an obstacle has to be erected by the oppressing party, which makes the use of property perc...
OGH: Consumers can sue for damages under the UWG
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) sticks to its point of view: Consumers have the right to sue for damages resulting from unfair business practices of an entrepreneur. It thus confirmed its legal view, which it took for the first...
ECJ: Liability in case of fall on an air passenger staircase
European LawThe Advocate General at the European Court of Justice (ECJ) has explained what is meant by an "accident" according to Art 17 para 1 of the Montreal Convention (MC). The plaintiff was a passenger on a flight from Thessaloniki (Greece) to Vienna operat...
DE: Reduction of commercial lease payments in the lockdown
Civil LawThe German Federal Supreme Court (Bundesgerichtshof, BGH) granted tenants of commercially used premises a right for lease adjustment as a result of a lockdown. However, all individual circumstances, such as state aid as well as loss of turnover or in...
OGH: On the validity of a European Certificate of Succession
Civil LawA certified copy of a European Certificate of Succession within the meaning of Regulation (EU) 650/2012 (Erbrechtsverordnung, EuErbVO) is valid for a period of six months from the date of issue, unless another time limit is specified. If the certifie...
OGH: Defamation in the context of a review on an online platform
Civil LawThe inaccuracy of a factual claim can also result from an incompleteness of the facts disclosed. The person concerned could thereby appear in a completely different light, or a false impression could be created. The plaintiff represented the defendan...
OGH: Compensation in case of exclusion from a private school
Civil LawIn the case at hand, the Supreme Court (Oberster Gerichtshof, OGH) dealt with claims for damages of the plaintiff due to the termination of school enrolment by the defendant for a reason agreed in the school enrolment contract under private law pursu...
Information on the new warranty law
Civil LawChanges in warranty law have been in force since January 1, 2022. The consumer warranty law (Verbrauchergewährleistungsgesetz, VGG) now predominantly applies to consumer contracts. There have also been changes in the Austrian General Civil Code (Allg...
DE: No revocation of a withdrawal of an appeal
Criminal LawA declaration of withdrawal of a filed appeal is irrevocable - according to the German Federal Supreme Court (Bundesgerichtshof, BGH). A person who has expressly declared that he or she wishes to withdraw the filed appeal cannot revoke this declarati...
DE: Legislator must regulate triage for people with disabilities
Public LawThe German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) sees an urgent need for action to protect persons with disabilities from disadvantages in a (pandemic-related) triage situation. It orders the legislature to take appropriate ...
LGZ Wien: Reasonable amount of damages for acts of trespassing
Civil LawIn the course of the plaintiff's stay in hospital, the Regional Court for Civil Matters Vienna (Zivilrechtssachen Wien, LGZ Wien) dealt with the appropriate amount of a claim for damages due to the preparation and possible execution of an act of tres...
UPDATE: Compulsory vaccination to enter into force on 5 February 2022
Public LawThe National Council (Nationalrat) has decided to make vaccination against COVID-19 compulsory. It is to come into force on February 5, 2022. A few changes have been made to the first draft. In principle, persons covered by the Act must have a valid ...
OGH on Fake-President Fraud
Corporate LawThe strategy of "fake-president fraud" is not designed to deceive persons authorised to make decisions, but to circumvent use of, or misuse existing processes through skilful manipulation and deception of an employee subject to instructions. Managing...
DE: Burden of proof rules - purchase of consumer goods by entrepreneur
Civil LawIf there is any doubt as to whether a real estate agent has purchased a vehicle for his business or himself, a consumer goods purchase must be assumed – this was the decision of the German Federal Supreme Court (Bundesgerichtshof, BGH). In the case a...
Data Protection Authority declares Google Analytics inadmissible
Public LawAs a consequence of the "Schrems II" ruling of the European Court of Justice (ECJ), the Data Protection Authority (DPA) has deemed the use of Google Analytics to be a violation of the General Data Protection Regulation (GDPR). Google Analytics is a p...
OGH: COVID-19 - Contractual waiver of Section 1104 ABGB
Civil LawIn the case at hand, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether rent must be paid in the case of a pandemic-related ban on entering the premises despite a contractual waiver of a rent exemption. The plaintiff ope...
OGH: Specification of price adjustments in the energy sector
Civil LawThe Association for Consumer Information brought an action against an Innsbruck energy supplier on the grounds of inadmissible clauses on price adjustments in the course of basic supply and on written form requirements. The ruling in question thus cr...
OGH: Pain compensation without pain as a result of a traffic accident?
Civil LawIn the course of the present proceedings, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of contributory negligence of a wheelchair user in the case of subsequent damage events and the awarding of compensation for pain and suff...
OGH: No individual protection against dismissal during short-time work
Civil Law Labour LawThe Supreme Court (Oberster Gerichtshof, OGH) confirms: Due to individual social partner agreements on short-time work, no individual protection against dismissal of an employee is stipulated. In the case at hand, the OGH dealt with an individual soc...
OGH: Different fixed prices and aliquoted annual costs
Civil LawOn "www.a1.at" consumers could buy a mobile phone tariff with a mobile phone. The mobile phone costs were shown as "one-time", the tariff costs as "monthly". In the line of the tariff costs, an annual service fee (Servicepauschale) was mentioned in s...
HG Wien: Online credit and liability for children
Civil LawThe Vienna Commercial Court (Handelsgericht Wien, HG Wien) examined the question of the expiry of credits and the liability of parents for the online behaviour of their children on the online platform "PlayStation Network", to be necessarily used by ...
ECJ: Flight brought forward by more than 1h is considered cancelled
European LawAccording to the European Court of Justice (ECJ), a flight is already considered cancelled if it is brought forward by more than one hour. The ECJ also ruled on the question of when and how an airline informed passengers in good time of the schedulin...
VwGH: When is a YouTube channel an audiovisual media service?
Public Law Administrative LawThe existence of a service within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU) requires that the provider of the service to be assessed participates in economic life with the service. If a service is...
OLG Wien: Teacher evaluation app "Lernsieg" unlawful
Public Law Civil LawThe Vienna Higher Regional Court (Oberlandesgericht Wien, OLG) has declared the teacher evaluation app "Lernsieg" unlawful. Specifically, it objected to the fact that there are only inadequate measures to verify the authenticity of the raters. In the...
OGH: Violation of fundamental rights in criminal proceedings
Criminal LawIn the course of an investigation by the Central Public Prosecutor's Office for the Prosecution of Economic Crimes and Corruption on suspicion of the crime of aggravated fraud, the business premises of one of the defendants - a limited liability comp...
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