.avif)
Notwithstanding the fact that mere accounting can be enforced against the administrator in non-litigation proceedings in accordance with Section 52 (1) Z 6 WEG 2002, this does not prevent the filing of a tiered action for accounting in the disputed proceedings. If the conditions for a level action are met — an action for accounting subject to the request for payment until accounting has been completed — the condominium owners' association may also take action against the property manager with a level action.
Supreme Court 10.7.2025, 10 Ob 40/25t
According to prevailing opinion, there is no provision for a formal distribution procedure or an order of the insolvency court on the draft distribution in the event of a lack of mass. As a typical management measure, the decision as to whether and to what extent property claims are to be satisfied falls within the personal responsibility of the estate manager. The insolvency court therefore also does not have to wait for proof of distribution in accordance with Section 47 (2) IO before resolving the proceedings (Section 123a IO).
Supreme Court 25.4.2025, 8 Ob 51/25w
According to Section 221 (1) IO — unless otherwise provided in Sections 222 to 235 IO — unless otherwise provided in Sections 222 to 235 IO — the law of the State in which the proceedings are opened (lex fori concursus) applies to insolvency proceedings, the conditions for their opening and for their effects. A similar provision also contains Article 7 of the EU InsVO.
According to Section 231 IO, whether a legal dispute pending in Austria over a thing or over a right of bankruptcy estate is to be interrupted is governed by the law of the state in which the legal dispute is pending; in this case, Austrian law. This is because both Austrian International Bankruptcy Law and the EU Insolvency Regulation lead to this result.
Supreme Court 5.8.2025, 5 Ob 186/24z
According to earlier case law, a reason for refusal that became known retrospectively after the arbitral award was issued”in extreme cases“is still regarded as admissible reason for an action for annulment (Section 611 (2) Z 5 Code of Civil Procedure). In the meantime, the Supreme Court (18 OCG 5/19p) has amended its case law to the effect that the partiality of arbitrators can be exercised not only in severe cases, but in general as a lack of staffing under Section 611 (2) (4) of the Code of Civil Procedure with an action for annulment. However, the possibility of such an action for annulment must not mean that a party can “reserve” the right to assert the ground for annulment — depending on the outcome of the arbitration proceedings. The rejection must therefore be made primarily in arbitration proceedings in accordance with Section 589 of the Code of Civil Procedure. Subsequent assertion is therefore only possible if the arbitrator's refusal was not possible during the arbitration proceedings before expiry of the comparatively short period available to a party under Section 589 (2) of the Code of Civil Procedure [namely four weeks] or Article 20 of the Vienna Rules [namely 15 days] during the arbitration proceedings to reject the arbitrator. This short rejection period is intended to prevent the interim procedural effort from becoming frustrated if you wait a long time. However, this does not apply if, at the time the reason for refusal became known, the arbitration proceedings had already been completed.
The reasons for the rejection of the judges of state courts may — taking into account the specific features of arbitration — also be used as guidelines [for the bias or exclusion of arbitrators] in arbitration proceedings. The IBA Guidelines on Conflict of Interest in International Arbitration (IBA Guidelines on Conflict of Interest in International Arbitration) can also serve as guidance when establishing grounds of partiality, regardless of the fact that they are not normative in nature. For example, the “orange list” contains a demonstrative list of situations which, from the point of view of the parties to the proceedings, may give rise to doubts as to the independence or impartiality of the referee in individual cases and must therefore be disclosed by the referee (IBA guidelines II point 3). For example, the case where the arbitrator acted as a lawyer (“counsel”) against one of the parties to the arbitration in another, unrelated legal dispute within the last three years.
In this case, the appearance of bias results from the dual role of the referee, who worked for the litigant in another arbitration procedure and even took part in a hearing there lasting several weeks.
Supreme Court 19.5.2025, 18 OCG 3/24a
The arbitral award had awarded the plaintiff a contractual penalty of 2% of the overdue amount per day of delay in payment of more than 60 days, limited to the total amount owed, i.e. limited to 100%. The Supreme Court states that this contractual penalty does not contradict public order.
In previous case law (3 Ob 221/04b), the Supreme Court had stated that the effective annual interest rate of 107.35% (based on an interest rate of 0.2% daily in conjunction with daily capitalization) was contrary to the substantive Austrian public order, as this default interest exceeds the coveted capital in the first year, which is the basic valuations of Austrian debt law (Section 1335 ABGB) is infringed.
Supreme Court 16.4.2025, 3 Ob 36/25b
If a GmbH is deleted from the commercial register, the office of liquidator of the GmbH ends, regardless of whether the GmbH still legally exists because assets still exist. If the liquidator ceases to exist due to cancellation of the GmbH, civil proceedings in accordance with Section 158 of the Code of Civil Procedure will be interrupted if the GmbH is not represented in the proceedings by a lawyer or by another person with legal authority.
According to Section 252 IO, this reason for interruption (Section 158 Code of Civil Procedure) also applies in insolvency proceedings, in any case in insolvency proceedings, if the respondent is affected when there is a creditor application to open insolvency proceedings.
Supreme Court 25.4.2025, 8 Ob 43/25v
According to settled case law on Article 25 of the EU General Data Protection Regulation, there is no jurisdiction agreement if the phrase “Jurisdiction: Court X” is not in the text of the contract itself but is hidden, for example in the small print footer below the end of the contract text. The reason for this is the purpose of the written form requirement under Article 25 (1) (a) of the GVVO to prevent the unnoticed entry of jurisdiction clauses into the contract and to protect the other party from surprising places of jurisdiction in the interest of legal certainty.
Exceptionally, however, a jurisdiction agreement in the footer was qualified as sufficient in a constellation if there was a business relationship lasting several years and, in previous contracts, the signature had been made several times directly below the reference to the place of jurisdiction in the footer.
Supreme Court 28.3.2025, 8 Ob 35/25t
For the jurisdiction agreement in terms and conditions for ongoing business relationships, see also: OGH 3.6.2025, 10 Ob 32/25s
If the operating creditor wants to seize an Internet domain, the attachable property right within the meaning of Section 326 EO (formerly Section 331 EoAF) is not the Internet domain as such, but rather the object of the attachment is the entirety of the debt claims that the owner of the domain is entitled to against the registration authority arising from the contractual relationship underlying the domain registration.
There are also no concerns about a possible infringement of trademark and name rights, because the seizure of the entirety of the legal claims that the owner of the domain is entitled to against the registration authority under the contractual relationship underlying the domain registration does not result in such an intervention.
Supreme Court 28.5.2025, 3 Ob 13/25w
According to § 3 lit b NO, an enforceable notary act is only capable of execution if the “legal title” (legal basis) can be inferred from it. Although the information in the notary act does not have to enable the executive court to verify whether the claim to be enforced actually exists, it must be possible to verify whether the legal basis of the claim in execution was presented conclusively and could have been effectively established. Accordingly, the minimum requirements for the creation of the claim must be stated and only then will the obligated party be able to defend himself against execution with opposition or impugnment action or with an action to establish the non-existence of the enforceable claim securitized in the notary act.
In the case of a lump sum acknowledgement in the notary act that the creditor (operating party) has provided cash benefits to one of the “committed parties” mentioned in the notary act, there is in any case missing a legal title within the meaning of § 3 lit b NO, as it remains unclear why the persons commit themselves to repay the amounts added.
Supreme Court 26.2.2025, 3 Ob 203/24k
Pursuant to Section 8 (1) EO (see RS0000267), the execution permit due to an operated claim, which the obligated party only has to fulfill in return for consideration to be granted to him step by step, is not dependent on proof that the consideration has already been provided or secured (3 Ob 121/21x). Even in the case of a service step by step, execution must therefore be approved immediately without further verification as to whether the consideration has been offered or provided.
However, the request for execution must be rejected if, at the time the decision is made, it is already clear that the execution cannot be successful (3 Ob 121/21x).
All circumstances that arise on record up to the decision must be taken into account; this also applies in particular to annulling or restrictive facts brought forward by the operating creditor (RS0000031).
In the special case of a step by step obligation due to an enrichment law rescission due to a failed contract (e.g. due to an error challenge or the assertion of lesio enormis or nullity), according to case law, the “two-condition theory” is to be assumed, according to which the reciprocal conditions are independent of each other and the existence of the main service obligation (repayment of the purchase price) does not depend on the effect of the move Payment owed (surrender) depends on the benefit in kind (3 Ob 202/12w).
If the operating creditor has to postpone a specific thing when rescinding a failed contract due to a step by step obligation contained in the execution order, the obligated party cannot object to any deficiencies or loss of value of the deferred item in the execution authorization proceedings. However, compensation claims derived from the deterioration of the item to be deferred step by step, the impossibility of provisioning or loss of the item may be asserted as a counterclaim and thus as objections in accordance with Section 35 EO, with which the obligated party is able to protect his rights with regard to the item to be returned.
Supreme Court 27.2.2025, 3 Ob 1/25f
The more recent case law, which rejects state immunity as a procedural impediment to asserting domestic employment law lawsuits against foreign states, is confirmed (OGH 9 OBa 37/19k, SZ 2019/116).
The admissibility of the action against the foreign state (here: Canada) is therefore no longer exclusively dependent on the purely private nature of the legal transaction, but also on the purpose of providing the work, which entails the immunity of the State in the event of sovereign activity.
Although the employee did not have to make a final decision on visa applications, she had to carry out activities both to check the formal requirements (for example in the sense of the existence of sufficient documents) and — although not everyday — to fulfill the content of requirements, including for partial aspects of the fulfilment of individual requirements for granting visas, such as verifying the necessary language skills of visa applicants, had to make consistent decisions.
The Supreme Court considered that the lower courts considered these activities of the employee to be justified in connection with a core area of state government activity — namely the granting of entry permits.
Supreme Court 27.2.2025, 8 OBa 56/24d
The limited partner can enforce his legal and company contract information rights in court in non-litigation proceedings.
Higher Regional Court Vienna 8.8.2014, 28 R 132/14h
For disputes between a foreign trading company and one of its foreign members, even a jurisdiction agreement for a court in Austria cannot establish domestic jurisdiction.
Supreme Court 18.3.2022, 6 Ob 194/21d
For a limited company founded under English law with an administrative headquarters in Austria, which was previously recognized as an independent legal entity under EU law, the basis for recognition has disappeared as a result of BREXIT. According to Austrian company statute, it is now regarded as a company under civil law. Proceedings pending against such a company must be continued with its or its shareholders as joint successors and the party name must be corrected.
OGH 24.5.2022, 10 Ob 41/21h; in the same sense OGH 30.8.2023, 6 Ob 123/23s
According to Austrian procedural rules, the Exempted Limited Partnership (ELP) under Cayman Islands law is not a party. In contrast to the (not applicable) procedural law of the Cayman Islands, the general partner of an ELP cannot sue under the name of the ELP. It is permitted to correct the party name to the general partner.
Supreme Court 11.12.2024, 6 Ob 234/23i
Partnership law does not contain any statutory provision on the nullity or contestability of shareholder resolutions. According to case law, the nullity of a decision of a partnership must be asserted not by legal structuring action, but by declaratory action. Such actions arising from the company relationship between the shareholders must always include all shareholders, whether on the plaintiff's side or on the defendant's side. The fact that shareholders can join as side interveners is not enough.
It is problematic if, in the case of partnerships, the regime, as applies to corporations — namely, bringing an action against the company — is agreed in the articles of association for the declaration of ineffectiveness of shareholder resolutions. Whether such an agreement is admissible remains an open question. If such a provision is admissible under company law, this presupposes in any case that the arbitral award can then also be effective against all shareholders concerned. In any case, this is only the case if the shareholders have agreed to the arbitration agreement and have already been granted corresponding participation and participation rights in the arbitration agreement. In particular, this includes the involvement of all shareholders in the constitution of the arbitral tribunal. If these minimum requirements are not met, the claim is not objectively arbitrable.
Supreme Court 3.4.2024, 18 OCG 3/22y
The claim for compensation by the managing co-owner relating to the proportionate expenses of the burdens directly related to the administration and use of the joint property against another co-owner and on the pro rata surrender of income must be decided in extrajudicial proceedings.
The nature of the legal action must be determined on the basis of the wording of the request and the factual allegations made by the party initiating the proceedings.
Supreme Court 12.3.2024, 5 Ob 10/24t
For a mandatory mediation agreement to be valid, certain minimum content requirements must be met and must therefore have a minimum level of specificity. The minimum requirements include determining how many mediators are to be determined by whom and how, what qualifications the mediators must have, where the conciliation attempt should take place and how long these attempts should take before the court can be brought before the court.
Supreme Court 25.9.2023, 6 Ob 229/22b
A sufficient factual connection to the application of Article 8 (1) of the EU General Data Protection Regulation between actions against different defendants is generally affirmative if the decision on one claim depends on the other or both claims depend on the resolution of a joint preliminary question.
The company's auditor based abroad has no legitimate interest in being able to be sued there only if he is sued on his own factual basis by shareholders in another Member State, together with a member of the supervisory board resident there.
Supreme Court 26.4.2024, 4 Ob 220/23s
