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OGH on the accounting for building demolition costs
Civil Law Corporate LawThe costs of demolishing buildings that have been in the company's assets for a longer period of time cannot be capitalized in the balance sheet as subsequent production costs of land, but represent an expense. The plaintiff - a construction, housing...
OGH on asset sacrifice and usufructuary rights (ErbRÄG 2015)
The Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question whether a right of usufruct reserved in the course of a gift prevents the provision of a property sacrifice even under the new legal situation following the Inheritance La...
BMJ: Civil Procedure Amendment 2021 under review
Civil LawThe Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) has submitted the draft for the Civil Procedure Amendment 2021 (Zivilverfahrens-Novelle 2021) for review. With this, the BMJ wants to further advance digitalization in the judiciary ...
BFG: Capital income from foreign "black fund”
The Federal Fiscal Court (Bundesfinanzgericht, BFG) dealt with the tax base of investment income from a foreign "black fund". The plaintiff held shares in an investment fund at a Swiss private bank. This was a so-called "black fund", i.e. a foreign i...
OGH: Fraudulent bankruptcy also renders payment plan null and void
Criminal LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled for the first time on whether the provision of Sec. 158 of the Insolvency Code (Insolvenzordnung, IO), according to which the reorganization plan is null and void if the debtor is convicted...
OGH on the professional liability of a drafter of a contract
In the case of contractual modalities that have already been stipulated, the drafter of a contract is only obliged to formulate what has been agreed accordingly and to put it into a legal form, but not to propose alternative contractual constructions...
Germany: Part 1: Modernization of German Partnership Law
Corporate LawThe long-awaited Act on the Modernization of Partnership Law (Personengesellschaftsmodernisierungsgesetz, (MoPeG) is now scheduled to come into force on 01.01.2024. The outdated provisions of partnership law will be adapted to current case law and th...
European Commission takes steps in the fight against financial crime
European LawWith the help of a total of four legislative proposals, the Commission seeks to improve the regulations on combating money laundering and terrorist financing. The new measures are intended in particular to mitigate the additional risks created by tec...
ESMA Statement on SPACs
Special Purpose Acquisition Companies (SPACs) have gained strong popularity within the European Union since the beginning of the year. In a public statement, the European Securities and Markets Authority (ESMA) has now commented on questions regardin...
Green light for the Renewable Energy Expansion Act Package
Public LawOn 07.07.2021, the Renewable Energy Expansion Act Package (Erneuerbaren-Ausbau-Gesetzespaket) received the necessary two-thirds majority of the National Council. The legal measures are intended to take into account the Austrian federal government's g...
BFG: Assertion of a lump sum for a child's vocational training
In the current case, the Federal Fiscal Court dealt (Bundesfinanzgericht, BFG) with the possibility of claiming extraordinary burdens in the context of a child's education. The plaintiff's daughter studied at a university of applied sciences (Fachhoc...
ECJ: AUA subsidy in conformity with EU law
The General Court of the European Union confirmed the Commission's decision of 6 July 2020 that the state subsidy of €150 million granted to the airline Austrian Arlines AG (AUA) was compatible with EU state aid law under Article 107(2)(b) of the Tre...
OGH on the review procedure under the GesAusG
Civil LawIn the review procedure regarding the cash settlement for shareholders excluded under the Austrian Shareholders' Exclusion Act (Gesellschafter-Ausschlussgesetz, GesAusG), neither an execution title is to be created, nor is interest to be paid on the ...
Germany: Legal expenses insurance must inform of invalid clauses
In its ruling of 31 March 2021, the Federal Supreme Court of Germany (Bundesgerichtshof, BGH) declared a clause of the general terms and conditions of a legal expenses insurer to be invalid, which, for a temporal classification of a legal expenses ca...
Revocation of trade license within the meaning of Sec. 87 (1) (1) GewO
The Supreme Administrative Court of Austria (Verwaltungsgerichtshof, VwGH) clarifies that the preparation of a prognosis, which is to be made in the case of a questionable withdrawal of a trade license, depends on the circumstances of the individual ...
OGH: Applicability of the Tenancy Act
In the case at hand, the Supreme Court (OGH) dealt with the question of how structural changes to a building between the conclusion of the lease agreement and the start of the lease affect the application of the Tenancy Act (MRG). The plaintiff was t...
OGH: On status as a party in probate proceedings
Third parties, such as contractual partners of the decedent, creditors or legatees, are in principle not parties in probate proceedings and therefore not entitled to lodge appeals. If the rights of third parties are infringed by a court decision, the...
Government proposal for the Insolvency Law Amendment 2021
The Federal Government has submitted the government bill for the Restructuring and Insolvency Directive Implementation Act (Restrukturierungs- und Insolvenz-Richtlinien-Umsetzungsgesetz - RIRUG). Under the amendment, companies should be able to avert...
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...
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