Posts tagged #Procedural Law
All PostsBasic Subsistence Level after Insolvency: Future Care Costs
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the issue of when a debtor’s minimum subsistence level can be raised during insolvency proceedings, considering anticipated future care and support costs. During debt settle...
OGH on Securing Administrator Costs in Restructuring Proceedings
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that paying or securing the costs of proceedings is a mandatory requirement for confirming a restructuring plan as part of insolvency proceedings. A mere deferral is...
GER: No Appeal Success – Court to Provide Information
Procedural LawCan an appeal procedure be too fast? The German Federal Court of Justice (Bundesgerichtshof, BGH) had to deal with this question because a higher regional court had dismissed an appeal even before receiving the statement of grounds for appeal. The ca...
OGH on Jurisdiction of Ordinary Courts in Arbitration Cases
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed, following the prevailing view in legal literature, that a claim for a declaratory judgment on the existence or non-existence of an arbitration agreement is inadmissible...
GER: Application for Reinstatement – No Success for Inconsistent Argumentation
Procedural LawThe German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) was asked to decide on the admissibility of an application to reopen a case. If a plaintiff instructs their lawyer to file an application for reinstatement on the grounds that t...
GER: Bundestag Poised to Introduce Commercial Courts
Procedural LawThe German Bundestag (federal parliament) has passed a bill that will allow German federal states to set up commercial courts. These courts will be able to hear first-instance commercial cases with a value of EUR 1 million or more, provided that the ...
OGH: Multistage Action Permissible in Void Gaming Contracts
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that providers of illegal online gaming services can be obliged to provide certain information. Whether or not the request for information is justified depends, amon...
New Austrian Bill on Group Action Claims
Procedural LawThe Austrian Federal Ministry of Justice has presented the government bill draft for the implementation of the long overdue Group Actions Directive (Verbandsklage-Richtlinie). A new Qualified Entities Act (Qualifizierte-Einrichtungen-Gesetz, hereinaf...
OGH: Cost-of-Living Allowance and Insolvency
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the tax-free cost-of-living allowance (‘Teuerungsprämie’, Austrian Inflation Relief Package, see Federal Law Gazette I 2022/93) constitutes remuneration and is prot...
OGH: Managing Directors Close Relatives under Insolvency Law
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that a debtor’s de facto managing director is ‘a member of the management or supervisory board’ within the meaning of Section 32(2)1 of the Austrian Bankruptcy Act (Insolven...
OGH: Service by Notice Board only after Other Attempts
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the requirements for service of an action by publication in the Ediktsdatei* notice board under Section 92 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ...
OGH: No Removal of Managing Director by Liquidator
Corporate Law Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that an insolvency administrator does not have the power to dismiss a managing director in the insolvency of a shareholder of a limited liability company (GmbH). The ori...
OGH: Absorption Proceedings and More Debt
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled: If, as agreed, a loan does not become due until the end of the absorption proceedings (Abschöpfungsverfahren[1]), there is no breach of obligation within the meaning of Sec...
GER: BGH on Lawyers E-Mailbox Malfunctions
Procedural LawA screenshot is enough to prove that the electronic mailbox program for German lawyers (besonderes elektronisches Anwaltspostfach, hereinafter beA) failed for several hours. This was decided by the German Federal Court of Justice (Bundesgerichtshof, ...
VwGH: Emails That End in Authority’s Spam Are Deemed Delivered
Procedural LawAppeals sent by email that end up in an authority’s spam folder are also considered delivered, the Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled. The legal representative of the complainant submitted appeals again...
OLG Wien: Single Party in case of GmbH Manager Removal
Procedural LawThe Oberlandesgericht Wien (Higher Regional Court, Vienna, hereinafter OLG Wien) has ruled that, in the case of the dismissal of a shareholder-director of a limited liability company (GmbH), both the director in question and the other shareholders wi...
Austrian Civil Procedure Amendment 2023
Procedural LawThe Austrian National Council has passed the Civil Procedure Amendment 2023 (ZVN 2023). Video hearings had been introduced temporarily during the Corona pandemic and proved to be very successful. Lawyers and judges have since requested that this form...
Lead Rulings by the German Federal Court of Justice
Procedural LawMass tort litigation, such as the diesel scandal, is putting a strain on Germany’s civil courts. The German government has now passed a bill introducing a ‘lead-ruling procedure’ at the Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) level...
OGH: Jurisdiction for Software Contracts Needs Clarification
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has asked the European Court of Justice (hereinafter ECJ) to clarify where the ‘place of performance’ as defined in Article 7(1)(b)(2) of Regulation (EC) 1215/2012 on Jurisdiction an...
OGH: International Jurisdiction for Gambling Claims
Procedural LawAustrian courts may have jurisdiction to hear claims against Maltese gambling companies, even if consumers have assigned their claims for enforcement. In the original case, a Maltese company (the defendant) had offered online gambling in Austria with...
OGH: COFAG Subsidies Are Garnishable
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that COFAG1 subsidies are, in principle, garnishable. In the original case, the court of first instance had granted the petitioning energy supplier, among other things, the ...
VwGH: Lawyer Deadline Duties
Procedural LawThe Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) has clarified its case law on the question of to what degree faulty deadline calculations by lawyers allow for a case’s restitution in integrum. In the original proceedings, fines had b...
OGH: Jurisdiction after Executory Title Violations
Procedural LawIf an action violating an executory title has materialised throughout Austria, pursuant to Section 355 of the Austrian Enforcement Regulation (Exekutionsordnung, hereinafter EO) the debtor has the choice of which district court to claim as competent....
Vienna Civil Court: Debt Judgments Enforcement or Extension
Procedural LawAn enforcement of a claim is deemed to have been completed even if the claim for collection amounts to less than the claim pursued and the claim is paid off in full by a third party debtor. As long as this constellation has not been finalized, an ext...
OGH: On the Delivery of Documents to the Court
Procedural LawGovernment authorities may only be called upon to provide documents to the court if a party is unable to obtain immediate document delivery and states and proves this fact in their application. However, an order for performance may not be issued. In ...
Austrian Supreme Court: Joinders and Common Garden Areas
Procedural LawIn the present case, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with determining if a part of a garden area belongs to the condominium property as a whole and if litigation in this matter requires a joinder of parties. T...
OGH: No Restrictive Interpretation of Section 184 ZPO
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that the right to ask a question under Section 184 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) is not restricted to facts that lie only within the sphere of t...
OGH: Legal Recourse for Priority Claims in Insolvency
Procedural LawThe Austrian Supreme Court (Oberster Gerichtshof) has ruled that in deciding on the admissibility of legal action it is not important whether the claim is actually an insolvency claim or a priority claim against the insolvency estate (German term: Ma...
Austrian Supreme Court: Quarantine and Recorded-Delivery Mail
Procedural LawLegally mandated self-isolation (quarantine) by a mail recipient prevents the addressee from picking up recorded delivery mail held at the post office for the duration of self-isolation. Therefore, this prevents remedying of undeliverable documents d...
Austrian Supreme Court: Right to Copy of Rulings for Interveners
Procedural LawIf an intervener declares their intervention within the appeal deadline applicable to the main party, the intervener shall be entitled to the issuing of a copy of the ruling. Also, the intervening party shall be entitled to a separate deadline for ap...
GERMANY: BGH on the Scope of the Right to a Fair Hearing
Procedural LawAccording to the German Federal Supreme Court (Bundesgerichtshof, BGH), the defendant's right to be heard is violated if the court of appeal awards the plaintiff more than they originally requested. It is true that in the case of a uniform matter in ...
Germany: No Claim Extension in Appeals
Procedural Law ZivilrechtChanging the matter in litigation during appeal proceedings in order to increase the likelihood of success of the action is not permissible. According to the German Federal Supreme Court (Bundesgerichtshof, BGH), such a change would affect the intere...
BMJ: Draft for a restructuring regulation presented
As part of the reform of insolvency law, the Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) has sent a draft law on the restructuring of companies (Restructuring Regulation – Restrukturierungsordnung, ReO) for review. The aim of the ...
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