Posts tagged #OGH
All PostsOGH on the Formation of Will in Owners’ Associations
Civil LawThe formation of will in an owners’ association may also consist of an act of will by the dominant majority owner, according to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). A prescription by the dominant majority owner (‘domina...
OGH: Politician ‘Collusion’ Ahead of Committee Interview
Civil LawIn democratic societies, one of the main functions of the press is to shed a critical light on political events. In so doing, the press must be given the opportunity to fulfil its vital role as a public watchdog. The plaintiff in the case at hand is ...
OGH on Data Protection Notices
Data Privacy LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) held in its decision from 23 November 2022 that a data protection notice taken note of by consumers in a contract’s General Terms and Conditions does not constitute a mere piece of in...
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-...
OGH: ‘Apparently Official Communication’ No Abuse of Office
Criminal LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that sending an ‘apparently official communication’ does not constitute abuse of office (Section 302 of the Austrian Criminal Code, Strafgesetzbuch). The defendants were, among others, ...
OGH Requests ECJ Interpretation of Consumer Rights Directive
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has requested the European Court of Justice (ECJ) to rule on whether the automatic renewal of a distance contract should give rise to a new right of withdrawal. The starting point was a case pend...
OGH on the unalterable determination of damage
Civil LawThe short statute of limitations of Section 1489 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) does not start to run before the actual occurrence of the damage. If there is uncertainty as to whether damage has occurre...
OGH: Capability of a legal successor of a gambling website to be sued
Civil LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) addressed the scope of a contract succession by the operator of a gambling website. The plaintiff concluded a framework agreement and various gambling contracts with the oper...
OGH on curatorship for GmbH shareholders
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has decided that the mere fact that the mother and the children are shareholders does not in itself justify the appointment of a curator. In the case at hand, the two minors as well as the mother...
OGH: On legal capacity after BREXIT
Corporate LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of the legal capacity or universal succession of a British company after the application of the freedom of establishment had ceased. The plaintiff is ...
OGH: No exemption from liability under the CMR
Corporate LawIf the hauler is responsible for gross negligence within the meaning of Article 29 of the Convention on the Contract for the International Carriage of Goods by Road (CMR), the person entitled to compensation may demand compensation for all damages th...
OGH on community property inter vivos
Civil LawIn the case of community property among living persons (inter vivos), one spouse has a legal claim to the registration of his or her co-ownership of the property of the other spouse covered by the community property. The termination of the community ...
OGH: Duty to inform in the case of operations without a preference
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH), following a similar decision, confirmed the scope of the duty to inform when there is a choice between two similarly dangerous surgical procedures. The plaintiff contacted an elective doctor due...
OGH: No frustrated costs in case of storage of unrelated objects
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that there are no frustrated costs if a warehouse can generally be used, but the objects intended for it are not stored in it. The plaintiff sold the defendant an allotment house (“...
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...
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...
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: 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...
OGH: Lawyer's duty to warn about potential return of contributions
Civil LawThe Supreme Court (Oberster Gerichtshof, OGH) addressed the question of the extent to which lawyers have to examine and warn of possible violations of the capital preservation regulations, in particular the prohibition of return of capital contributi...
OGH: On the liability of the host provider for copyright infringements
Although the operator of a video platform plays a central role in making the content posted by users accessible, this alone is not sufficient to assume communication to the public. For copyright infringement, there is only limited accountability. In ...
OGH on the reimbursement of educational costs of minors
In the present case, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the permissibility of an agreement on the reimbursement of training costs between a minor and her employer. In the case in question, a minor concluded a contract of employm...
OGH on the application of the 30-year limitation period to legal persons
In the present case, the Supreme Court (Oberster Gerichtshof, OGH) answered the question of the possible application of the 30-year limitation period to legal persons in the case of qualified criminal offences committed by one of their members (organ...
OGH on service in insolvency proceedings
According to Section 257 para 2 of the Insolvency Code (Insolvenzordnung, IO), the consequences of the service already come into effect through the public announcement, even if the specific service has been omitted. Notwithstanding the individual ser...
OGH again on the discernibility of witnesses in a will
The Supreme Court (Oberster Gerichtshof, OGH) once again commented on the question of which information on witnesses to a will is sufficient to ensure their identifiability under the new inheritance law (Erbrechtsänderungsgesetz 2015, ErbRÄG 2015). I...
OGH: Duty of banks to provide information to guardianship court
Upon request, the bank must also provide the guardianship court with information on whether there have been any account movements since the account was opened or what the current account balance is. The bank's obligation to provide information to the...
OGH: Sec. 1 UWG - Disparagement of the competitor
The competitor may not disparage his rival competitor out of hand and harm him in a business sense, even if a business-damaging allegation is true. An unnecessary and unobjective disparagement, which may contain a kernel of truth, is contrary to fair...
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 ...
OGH: Non-professionals are obliged to refuse installation work
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that someone who takes on a job for which expertise is required without the appropriate expertise has acted culpably and in tort. In the present case, the defendant installed a new but unsu...
OGH to ECJ: Right to information: categories of recipients under GDPR
The Austrian Supreme Court (OGH) has referred a question to the European Court of Justice (ECJ) for a preliminary ruling regarding Art 15 (1) (c) of the General Data Protection Regulation (GDPR). The question is whether the data controller has the ri...
OGH: general meeting minutes are no proof of power of representation
In several general meetings held by the plaintiff limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) as general meetings without a chairman, one of the two managing directors with collective representation authority (second manag...
OGH: Statistically derived probability data constitute personal data
Data calculated via statistical probabilities and merely "attributed" to a person are also personal data within the meaning of the General Data Protection Regulation (GDPR). Upon the plaintiff's request, the defendant provided him with information ab...
Presentation of secretly recorded videos in guardianship proceedings
If an injunction is issued to stop the disclosure or dissemination of secretly recorded video material, this does not preclude the presentation of the recordings in court proceedings. In the case at hand, the defendant secretly recorded several video...
OGH: admissibility of hypothetical merger notifications in cartel law
In the course of the notification of a merger to the Federal Competition Authority (Bundeswettbewerbsbehörde, BWB), the Austrian Supreme Court (Oberster Gerichtshof, OGH) had to address the question of whether such merger notifications are possible w...
OGH: Only business shutdowns due to Epidemic Act are insured
Civil LawInsurers of epidemic business interruption insurance are generally only obliged to provide cover if the business was closed due to the Epidemic Act (Epidemiegesetz, EpiG). Closures under the COVID-19 Measures Act (COVID-19-Maßnahmengesetz) are not co...
Interference with the legal succession renders ineligible to inherit
The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that with the new law of succession, the interference with the legal succession, e.g. by falsification or subversion of a will, also results in ineligibility to inherit according to Sec. 54...
OGH: inadmissible passing on of costs in GTCs
The Austrian Supreme Court (Oberster Gerichtshof, OGH) had to examine a contract clause used by a retailer in the field of radio, hi-fi, TV and photo articles as well as hearing aids. The clause was intended to entail that the consumer bears the expe...
OGH annuls several GTC clauses of an online broker
The Austrian Supreme Court (Oberster Gerichtshof, OGH) has annulled numerous clauses of the General Terms and Conditions (GTC) of a Dutch online broker in an action brought by the Association for Consumer Information (Verein für Konsumenteninformatio...
OGH: Excessive price is not a defect subject to reporting (Sec. 377 UGB)
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) recently ruled that in cases of reduction by more than half, there is no obligation to give notice of defects within the meaning of sections 377, 378 of the Austrian Commercial Code (Unternehmens...
OGH: Warning sign does not remedy failure to maintain road
The mere posting of a general warning that winter maintenance will not be carried out cannot, as a rule, exclude the liability of the person responsible for the maintenance of the path. In the present case, the defendant, who runs a municipal cemeter...
OGH on Sec. 10 (3) (3) Trademark Protection Act
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that the exemption provision of Sec. 10(3)(3) Trade Mark Protection Act 1970 (Markenschutzgesetz 1970, MSchG 1970) need not necessarily be limited to the practical only means of provid...
OGH on the liability of a dual function holder within a group
Corporate LawIf the obligatory approval of the supervisory board is not obtained when a letter of comfort is issued by the executive board of the subsidiary, the managing director is then directly liable to the parent company if he also serves on the executive bo...
OGH refers 1st COVID-19-JuBG to ECJ
The Austrian Supreme Court (Oberster Gerichtshof, OGH) referred the question to the European Court of Justice (ECJ) for a preliminary ruling whether the interruption of all procedural time limits pursuant to Sec. 1 (1) of the 1st COVID-19 Accompanyin...
OGH on consumer jurisdiction for the purchase of investment products with Bitcoins
When purchasing investment products that are advertised and distributed in Germany and whose purchase is only possible by means of Bitcoins, the consumer can only be sued in the country of residence. The defendant, resident in Germany, intended to pu...
OGH on the presentation of standard information and the choice of representative example in consumer credit advertising (Sec. 5 (1) VKrG)
The Supreme Court (OGH) had to decide on a request for an injunction by the Association for Consumer Information (Verein für Konsumenteninformation, VKI) against a bank due to the manner of advertising for consumer loans. In the present case, the def...
OGH on the exclusion of liability in a mandate agreement of a private foundation subject to approval
Corporate LawWhen concluding a mandate agreement between a private foundation and a law firm to which one of the members of the foundation's board of directors belongs as a partner, no limitation of liability to gross negligence may be agreed. Pursuant to Sec. 17...
OGH on the admissibility of compensation clauses of a public company in the course of a reorganization
In the course of the conversion of a limited partnership (Kommanditgesellschaft, KG) into a public limited company (Aktiengesellschaft, AG), two partners left the KG. The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled on the question of wha...
OGH on the entry in the commercial register of a resolution contestable due to defects in the convening of the meeting
Corporate LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) had to clarify the question of whether a resolution that presents defects and is therefore contestable - not null and void - can be entered in the commercial register. At the general meeting of a...
OGH: No violation of Art 6 ECHR when video conferencing is ordered in arbitration proceedings
In the wake of the COVID-19 pandemic, video conferencing is a suitable means of maintaining business operations. According to the Austrian Supreme Court (Oberster Gerichtshof, OGH), if negotiations in arbitration proceedings are ordered in the form o...
OGH: Abstract entitlement to the compulsory portion under Sec. 782 f. ABGB is assessed according to the time of gift and death
For the first time, the Austrian Supreme Court (Oberster Gerichtshof, OGH) commented on the question of what point in time is relevant for the assessment of the abstract right to a compulsory portion under Sec. 782 f of the General Civil Code (Allgem...
OGH on public liability: No ordinary legal recourse against supporting GmbH in a university course of studies
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) had to judge whether a course of further education (Weiterbildungslehrgang) at a teacher training college (Pädagogische Hochschule, PH) is a fulfillment of sovereign duties and thus the ordinary ...
OGH on registered shareholders within the meaning of Sec. 5 EKEG
Corporate LawAccording to the Equity Replacement Act (Eigenkapitalersatzgesetz, EKEG), loans granted by a shareholder to a company in crisis are considered equity replacement. If such a loan is repaid before the company is restructured, the payments must be repai...
OGH on probate proceedings and the registration of claims in the inheritance by creditors
The provisions of Sec. 143 et seq. of the Non-Contentious Proceedings Act (Außerstreitgesetz, AußStrG) govern the probate proceedings. Followed by preliminary proceedings, a death certificate is issued. At this time the widower applied for the author...
OGH on the analogous applicability of § 1 (5) BWG and § 51 BörseG to contracts for differences concluded between companies in the area of concealed forward transactions
Banking LawThe defendant refused to disburse the profit from speculative commodity forwards, arguing that these were transactions for differences that had created a (non-enforceable) “natural obligation” under Austrian law. The plaintiff thereupon sought to app...
OGH on the prohibited return of capital contributions within a group
Corporate LawIn its present ruling, the Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed its case law on the prohibition on the return of capital contributions. The capital maintenance regulations of the Austrian Act on Limited Liability Companies (Gm...
OGH on the admissibility of provisions in the corporate balance sheet
Corporate LawRecently, the Austrian Supreme Court (Oberster Gerichtshof, OGH) for the first time ruled on the formation of provisions in the annual balance sheet in accordance with the Austrian Commercial Code (Unternehmensgesetzbuch, UGB) for legal costs. In pri...
OGH: Only variable personnel costs are “frustrated” costs and eligible for compensation
The Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question whether frustrated personnel costs are eligible for compensation in addition to loss of earnings. In the present case, an “architecture and engineering contract” exists be...
OGH: On the period of assumption within the meaning of Sec. 924 ABGB and the burden of proof in the case of defects that occur after handover
Civil LawIn the course of a work contract the defendant was commissioned by the plaintiff to manufacture, deliver and install a surveillance system. The handover took place, but only a few days after this and repeatedly thereafter malfunctions occurred. After...
UPDATE: OGH on the problem of interest on remuneration after withdrawal from contract and cases of "substantial" reduction of the claim due to the three-year limitation period
In a number of proceedings, the courts have dealt with the withdrawal from insurance contracts due to failure to provide information about the right of withdrawal. In particular, the question of the interest on remuneration to which the policyholder ...
Does § 10 (2) of the Leave Entitlement Act conform to Union law?
The Austrian Supreme Court (OGH) has asked the European Court of Justice (ECJ) for a preliminary ruling on the question of whether § 10 (2) of the Austrian Leave Entitlement Act (Urlaubsgesetz, UrlG) is compatible with Union law. Pursuant to § 10 (1)...
OGH: "Recruitment costs" for retention of employees via a third-party temporary employment agency are inadmissible
The Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the permissibility of a clause providing for the replacement of "recruitment costs" in a contract for the leasing of temporary workers. The plaintiff leased employees to the defendant....
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