Usancen Blog
Government draft Consumer Warranty Act
The new Consumer Warranty Act (VGG) is intended to implement both the Digital Content Directive and the Sale of Goods Directive. Full implementation is to be achieved through amendments to the Austrian General Civil Code (ABGB) and the Consumer Prote...
D: fee for payment via "Immediate Transfer" or "PayPal" is permissible
On March 25, 2021, the German Federal Court of Justice (BGH) ruled in a final decision that charging a fee for cashless payments via Immediate Transfer (Sofortüberweisung) or PayPal is legally permissible. There was no violation of Section 3a of the ...
OGH: Social plan and waiver of avoidance
According to a decision of the Supreme Court, the payment of a voluntary settlement by a social plan may be made dependent on the employee’s or the works council’s refraining from challenging the termination in court. In the present case, a works agr...
OGH on the liability of the guardian for adults vis-à-vis third parties
The duties of a guardian to safeguard and promote the well-being of the ward are only relevant vis-à-vis the ward, but not vis-à-vis third parties. In the case at hand, the defendant was appointed as guardian for an adult (Erwachsenenvertreter, forme...
D: UPDATE: Controversial Legal-Tech Act passed
On June 10, 2021, the Bundestag (Lower House of the German Federal Parliament) passed the controversial "Legal-Tech Act" (Act to Promote More Consumer-Friendly Offerings in the Legal Services Market). It provides for contingency fees for lawyers and ...
Austrian Administrative Court on tax privileges for stock options
Tax LawIn the case at hand, the appellant had been granted options for the acquisition of shares ("stock options") by his employer. The appellant had the choice between two alternatives, either "exercise & sell" or "exercise & hold". The appellant opted for...
Antitrust: Possible anti-competitive practices by Facebook?
The European Commission has launched an antitrust investigation into Facebook. The suspicion is that Facebook might have violated EU rules on anti-competitive agreements (Article 101 TFEU) and/or on abuse of a dominant market position (Article 102 TF...
ECJ: Content does not make a newspaper a defective product
The European Court of Justice (ECJ) has ruled that a printed copy of a newspaper whose content contains incorrect health tips is not a "defective product" within the meaning of the Product Liability Directive (85/374/EC). In the main proceedings, a r...
Trademark "ABSOLUT" is not absolutely prohibited
The marketing of a snow park operator bore great similarities to the vodka brand "Absolut" and this has now led to legal consequences for her. The defendant used the sign "ABSOLUT PARK" on many different objects in its snow park. In addition, the def...
EU Parliament and Council: Milestone for tax transparency
At EU level, representatives of the European Parliament and the Council were able to agree on a regulation for greater tax transparency for companies. This agreement is aimed at multinational companies (including their subsidiaries) that operate in m...
Banking sector: inadmissible general terms and conditions
In a landmark ruling against Postbank, the Federal Court of Justice (Bundesgerichtshof, BGH) ruled that the clauses in the General Terms and Conditions (GTC) on the increase of fees for current accounts were to be considered invalid if they feigned t...
VwGH: Compensation payments by the employee tax deductible
In the current case, the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) ruled on the tax deductibility of settlement payments made by an employee to the former employer. The background to the decision was the imposition of a fine on a co...
OLG Linz: No culpability as per Sec. 178 StGB in case of low viral load
The Linz Higher Regional Court (Oberlandesgericht Linz, OLG Linz) has ruled that the mere failure to comply with a quarantine order ("quarantine breach") is not in itself sufficient for criminal liability under Sec. 178 of the Criminal Code (Strafges...
OGH: Warranty - transferor may inspect item beforehand
The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that it follows from the priority of subsequent performance (improvement) in warranty law that the transferee must make the defective item available to the transferor for inspection. In...
OGH: Lawyer's liability in the event of faulty execution
A lawyer must obtain the consent of their client if it is questionable whether further execution steps are still in the interest of the client. This has been established by the Austrian Supreme Court. In the case of contradictory or insufficiently sp...
Germany: New competition rules for large digital corporations
On the basis of the newly created Section 19a of the (German) Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB), which came into force at the beginning of the year through the 10th GWB amendment (GWB-Digitalisierungs...
OGH: Arbitration clause binds third parties benefiting from contract
The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that an arbitration clause in a contract with protective effect in favor of third parties is also binding for the beneficiary third party. In the present proceedings, the universal succ...
NC adopts legislative package on the European Public Prosecutor’s Office
With the aim of enacting the Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO), the Austrian National Council (NC) has adopted a legislative p...
Green light for the digital COVID certificate
On 17 March 2021, the European Commission proposed the introduction of a digital green certificate to serve as proof that a person has been vaccinated against COVID-19, tested negative or recovered. Within two months, the Commission, Council and Parl...
European Green Deal: Commission adopts new pollutant action plan
On 12 May 2021, the European Commission adopted its new EU action plan towards zero pollution for air, water and soil with the vision that, by 2050, pollution will be reduced to levels no longer harmful to human health or natural ecosystems. Frans Ti...
ESMA: Proposal for mandatory reporting of net short positions
In March 2020, in response to the Corona pandemic, the European Securities and Markets Authority (ESMA) tightened the reporting requirement for net short positions in relation to a company's issued share capital. This obligation now applied to positi...
OGH: Consequences of a coronavirus-related business closure
The duration of a fixed-term employment relationship may be fixed in terms of a specific date or linked to a specific event. The wording "end of the winter season" is an objectively determinable event that also occurs in combination with an officiall...
European Commission: EU-wide business taxation
In a Communication on Business Taxation for the 21st Century, the European Commission (EC) has introduced its vision on how to promote a robust, efficient and fair business tax system in the European Union. To this end, the EC will present by 2023 a ...
EU: Evaluation results for horizontal agreements between companies
On 6 May 2021 the European Commission published the findings of the evaluation of the two horizontal block exemption regulations on Research & Development and specialization agreements (“R&D BER” and “Specialization BER” respectively, together “HBERs...
ECJ: No selective advantage for Amazon subsidiary
In the present case, the General Court of the European Union annulled a Commission decision concerning operating aid because the findings in the decision could not be proven accordingly. The background was the taxation of two Luxembourg subsidiaries ...
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