Category: News

  • Maxl & Mötz supports the Doderer Symposium 2026 at the Wien Museum

    Maxl & Mötz supports the Doderer Symposium 2026 at the Wien Museum

    Together with PORR AG and Julius Meinl Austria GmbH, our firm is supporting the rediscovery of one of the most linguistically powerful Austrian authors of the 20th century.

    Maxl & Mötz Rechtsanwälte is among the sponsors of the symposium „Doderer’s Vienna: An Author and His City“, which will take place on 19 September 2026 at the Wien Museum on Karlsplatz. We are delighted to share this commitment with two further renowned partners: PORR AG and Julius Meinl Austria GmbH. As sponsors from the very outset, the three companies – together with Stadt Wien Kultur, the Federal Ministry of Housing, Arts, Culture, Media and Sport, and the Wien Museum – are making possible a full-day event of high literary-scholarly quality, free of charge for the public.

    The occasion is the 130th anniversary of Heimito von Doderer’s birth and the 60th anniversary of his death. „Now I am coming!“ Thomas Bernhard is said to have exclaimed after Doderer’s death in 1966 – „Now Doderer is coming, once again!“ is the unofficial title of the symposium. With The Strudlhof Steps, The Demons and The Waterfalls of Slunj, Doderer wrote three metropolitan novels in which Vienna is not merely a setting but a poetic resonating space. The event is not intended as a nostalgic retrospective, but as an invitation to rediscover an Austrian author of world stature.

    The organiser is the Wiener Heimito von Doderer-Gesellschaft, founded at the end of 2024 and based c/o Maxl & Mötz Rechtsanwälte GmbH. Dr. Martin Maxl, partner of our firm, is a founding member of the society as well as the initiator and organiser of the symposium; he will open the event and contribute a lecture of his own on Doderer’s Viennese novels.

  • Register of Beneficial Owners – changes from 1 July 2024

    Register of Beneficial Owners – changes from 1 July 2024

    In its capacity as the register authority, the Federal Ministry of Finance has provided information about the changes to the reporting of beneficial owners under the WiEReG in its Technical News 2024/02. These changes, which are based on the WiEReG Amendment 2023 (BGBL I 2023/97), enter into force on 1 July and concern reports transmitted to the register after 30 June 2024.

    All reports submitted after this cut-off date must take the changes into account. A renewed submission of a report before the annual review falls due (§ 3(3) WiEReG) is not required. The updated WiEReG BMF decree is expected to be published in August; the BMF’s collection of case examples will be adapted to the new legal situation and published on the BMF’s website. For matters affected by the changes, the new reporting forms must be used from 1 July 2024, irrespective of whether the due diligence obligation under § 3 WiEReG is performed before or only after this cut-off date.

    The most important changes that must be reflected using the new reporting forms are:

    • disclosure of relevant trust relationships within the chain of ownership;
    • the possibility of waiving the automatic transfer of data for domestic foundations and trusts as top-level legal entities;
    • reporting of trust relationships in the case of foundations, trusts and comparable legal entities;
    • statement of the proportion of assets contributed in the case of foundations, trusts and comparable legal entities;
    • reporting of the insolvency administrator as subsidiary beneficial owner where no top management level exists.

    The new reporting form for party representatives has already been available since 1 July 2024, in parallel operation in addition to the existing forms. It has been developed from the ground up.

  • Insurer’s waiver of recourse in cases of slight negligence in favour of the tenant

    Recently, the Supreme Court changed its long-standing line of case law on the protection of the tenant’s interest in property compensation under a property insurance contract and re-evaluated this question. Accordingly, the interpretation of the landlord’s insurance contract may result in the inclusion of the tenant’s interest in property compensation in the form of an implied waiver of recourse by the insurer for cases of slight negligence (OGH of 27 September 2023, 7 Ob 99/23v).

    By the action underlying the Supreme Court’s decision, the claimant insurance company sought payment in respect of a claim for damages of the landlord insured with it (the policyholder) against her tenant, the defendant, which had allegedly passed to the insurer pursuant to § 67 VersVG. Between the landlord and the claimant insurer there was a water-pipe damage insurance for the building in which the leased object was also located, which contained no waiver of recourse by the insurer in favour of the tenants. The defendant tenant paid the costs of the water-pipe damage insurance premium proportionately within the framework of the operating-cost statement.

    Following a re-evaluation of the question of the protection of the tenant’s interest in property compensation under the landlord’s property insurance contract, the Supreme Court now departs from its previous line of case law (cf. e.g. RIS-Justiz RS0081376, RS0081376, RS0081503) and assumes that the interpretation of the property insurance contract under § 914 ABGB may result in the inclusion of the tenant’s interest in property compensation in the form of an implied waiver of recourse by the insurer for cases of slight negligence.

    In the interpretation of the contract, therefore, the recognisable interest situation of the owner (policyholder/landlord) is decisive. This is characterised by the fact that he wishes to avoid disputes with a possessor (tenant) to whom he has – usually on the basis of a contract – granted control of the property. If the tenant’s interest in property compensation were not protected, the policyholder (landlord) would, after the occurrence of the insured event, be compelled to support the insurer in enforcing the claims that had passed to it, which can lead to a considerable strain on the relationship with the tenant. In addition, he may have an interest in protecting the tenant because he has passed the premium (proportionately) on to him. Finally – especially in the case of continuing obligations – the owner’s (landlord’s) interest is to be emphasised in avoiding an impairment of the financial capacity of the property user (tenant) through recourse by the insurer.

    According to the Supreme Court, the recognisable and worthy-of-protection interest of the policyholder in a waiver of recourse on account of slight negligence is also not opposed by any such interests of the insurer as would allow it to escape a waiver of recourse. Nor is the protection of the interest in property compensation by way of a waiver of recourse subject to the proviso that no liability insurance exists in favour of the person liable which covers the damage.

    In the case assessed by the Supreme Court, the interest situation of the landlord (policyholder) was recognisable for the insurer at the conclusion of the insurance contract, above all because the insurance policy expressly stated that the insured building was an „office, commercial and hospitality operation, dwellings“ and thus a „tenement house“. An honest recipient of the declaration was therefore entitled to rely on the insurer waiving, in any event, claims for recourse on account of slight negligence against those tenants onto whom its policyholder (landlord) typically passes its premiums.

  • No prohibited motive dismissal where the employee refuses a change to the contract

    No prohibited motive dismissal where the employee refuses a change to the contract

    In a decision recently obtained by our firm, the Supreme Court once again made clear that there is no prohibited „motive dismissal“ (Motivkündigung) where an employee refuses the employer’s wish for a change to the employment contract and is dismissed as a result (OGH of 29 March 2023, 8 ObA 11/23k).

    The so-called „motive dismissal“ constitutes, alongside the „socially unjustified dismissal“, probably the practically most significant ground for challenging employer-initiated dismissals in Austria. Accordingly, a dismissal may be challenged if it was made on account of the employee’s evidently not unjustified assertion of claims from the employment relationship that had been called into question by the employer. The purpose behind this rule is to prevent „retaliatory dismissals“ by the employer following the successful or attempted enforcement of claims from the employment relationship by the employee.

    However, where the employer, by the route provided for by the legal order – namely by an offer of amendment – seeks a change of the contract concerning dispositive contractual points, and the employee does not consent to the change desired by the employer and is subsequently dismissed by the employer, there is no prohibited „motive dismissal“. In the employer’s attempt to achieve, by a mutual agreement, a deterioration – taking effect only in the future and not legally impermissible – of the terms of the employment contract, there lies no „calling into question“ of the employee’s hitherto existing claims. The position would be different only if the employer’s offer of amendment were the reaction to the employee’s assertion of not evidently unjustified claims and amounted, in substance, to placing him before the choice of abandoning that demand or having to accept the termination of the employment relationship.

    That was not the case in the facts underlying the highest court’s decision. For there, the reasons for the endeavour of the defendant employer – represented by our firm – to agree with the claimant employee, by way of an addendum to the employment contract, a new job description and function designation, lay in operational restructuring. Neither the salary, the activity, nor the collective-agreement classification of the claimant would have been changed. To that extent, the Supreme Court, too, confirmed the decision already taken by the appellate court following an appeal drafted by our firm, according to which there is no „motive dismissal“, and dismissed the action.

  • On the bad-faith application for trade marks (specifically the „Lippizaner“ marks)

    On the bad-faith application for trade marks (specifically the „Lippizaner“ marks)

    Bad faith is to be assumed in particular where the applicant, without any specific business relationship with potential users, applies for a multitude of marks with little or no distinctive character, only a small proportion of these applications actually leads to registration, and no realistic business model is discernible for any use of these marks going beyond the assertion of injunctive and payment claims (OGH 27 June 2023, 4 Ob 54/23d).

    Under § 34 MarkSchG, anyone may seek the cancellation of a mark if the applicant was acting in bad faith at the time of the application. The concept of „bad faith“ is a concept of EU law that must be interpreted uniformly. Whether an application was made in bad faith is, according to the case law of the ECJ, to be assessed „comprehensively“, taking into account all „relevant factors“ in the specific case. Bad faith has hitherto been affirmed primarily in the case of a breach of loyalty obligations or in the case of the obstruction of a third party already using the sign. However, it cannot be inferred from the case law that bad faith is limited to these categories of case.

    A bad-faith acquisition of trade mark rights within the meaning of § 34 MarkSchG presupposes the applicant’s intention, by registering as a trade mark a sign already used by a third party, to obtain a weapon in order to disrupt a system built up by a competitor. This intention need not be the applicant’s only motive; it is sufficient that it is an essential motive. A trade mark application is also made in bad faith where it is made without any intention of the applicant’s own use or marketing, but serves principally to pursue third-party undertakings that later use identical or similar signs for injunctive relief and payment. This is to be assumed in particular where the applicant, without any specific business relationship with potential users, applies for a multitude of marks with little or no distinctive character, only a small proportion of these applications actually leads to registration, and no realistic business model is discernible for a use of these marks going beyond the assertion of injunctive and payment claims. Bad faith is to be assumed where, at the time of the application, the trade mark proprietor was aware that competitors were using, for similar or identical goods, signs that are confusingly similar to the sign applied for by him as a trade mark. The only point in time relevant for the assessment is the time of the application. Later conduct of the applicant or trade mark proprietor contrary to public policy can no longer be pursued under this provision.

  • A turning point in the limitation of holiday entitlements

    Following the most recent case law of the ECJ on the limitation of holiday entitlements, it was only a matter of time before the principles thereby established would also be reflected in Austrian case law. As a result, the principle hitherto firmly anchored in people’s minds (and strongly simplifying) – that holiday must be taken within three years, failing which it lapses – is largely undermined (OGH 27 June 2023, 8 ObA 23/23z).

    The Supreme Court’s decision was based on facts in which the claimant had been employed by the defendant for around 17 years as a gamekeeper and later also as an estate manager. In the event of his absence, temporary staff were deployed, but they lacked the knowledge and experience to fully take over the claimant’s tasks. For this reason he worked for the defendant largely seven days a week in order to ensure the care of the animals and the maintenance of the estate operation.

    During his employment relationship the claimant took only 121 days of holiday. The claimant was neither requested by the defendant to take his holiday nor alerted to the looming limitation. At the end of the employment relationship the claimant had (according to his submissions) an open holiday entitlement of 322.75 days. However, relying on § 4(5) UrlG, the employer paid only a holiday compensation payment for the holiday not yet time-barred from its point of view, i.e. for the holiday entitlement of the last three years before the end of the employment relationship. The claimant now also sought the holiday compensation payment for the remaining holiday which, according to his employer’s legal position, was already time-barred.

    By law, every employee is entitled to paid annual leave under Article 31(2) of the Charter of Fundamental Rights (CFR). Under Article 7(1) of the Working Time Directive 2003/88/EC, the employee is entitled to a paid minimum annual leave of four weeks. Austrian employment law goes beyond the requirements of EU law by providing, under § 2(1) UrlG, for an annual holiday entitlement of at least 30 working days. Under § 4(5) UrlG, this holiday entitlement becomes time-barred two years after the end of the holiday year in which it arose. A total of three years is thus available for the actual taking of the leave in kind.

    While the court of first instance still denied the claimant’s claim on the basis of this legal position, the Higher Regional Court granted his claim to that effect. The Supreme Court confirmed this decision and reasoned it by reference to the case law of the ECJ:

    As early as 2018, in a much-noted decision on German holiday law, the ECJ had held that Article 31(2) CFR and Article 7 of the Working Time Directive preclude a limitation of the holiday entitlement where the employee, as the weaker party to the employment contract, did not actually have the possibility of taking the leave – for instance as a result of appropriate information provided by the employer. According to this case law, the task of ensuring that annual leave is actually taken may therefore not be shifted entirely onto the employee. Although, as already noted, these ECJ decisions concerned German legal provisions, they were also widely discussed in Austria, and even then considerable doubts were raised as to the tenability of the previous domestic case law on the limitation of holiday. For the time being, however, the Supreme Court still assumed that the three-year limitation under § 4(5) UrlG conformed to EU law, arguing that three years gave employees a reasonable period to enforce their holiday entitlement.

    In the ECJ’s decision in Case C-120/21, LB v TO, it has now, however, been clarified that Article 7(1) of the Working Time Directive also precludes a national rule under which the entitlement to paid annual leave becomes time-barred after a period of three years where the employer has not actually put the employee in a position to exercise that entitlement.

    As a result of this ECJ decision on a rule quite similar to § 4(5) UrlG, it is now also established – according to the Supreme Court – that the holiday entitlement secured under EU law (!) cannot become time-barred where the employer has not complied with its (now indisputably existing) duty to request and to inform vis-à-vis the employee. With the latest decision it is thus also clarified that the ECJ lays down, retroactively, a distinct obligation of conduct on the part of the employer in the form of a duty to request and to inform. The Supreme Court did not address the question of whether all of this also applies to the holiday entitlement not secured under EU law, i.e. going beyond the minimum amount of holiday under the Working Time Directive. A certain need for clarification therefore remains here.

    For practice, this Supreme Court decision – in particular through the duty to request and to inform vis-à-vis the employee now expressly established also for Austria by the highest court – has serious consequences in many cases. For a breach of these duties entails considerable (financial) consequences. To that extent, in this area not only will the previous handling of open holiday entitlements have to be reviewed, but – where they do not already exist – (ideally automated) systems will also have to be considered in order to comply with the duty to request and to inform. We will of course be happy to support you in this!

  • Misleading top-position advertising

    Misleading top-position advertising

    Claiming a top position – for example, as the largest company in Austria – presupposes that there actually is a steady and substantial lead over all competitors in Austria (OGH 25 April 2023, 4 Ob 223/22f).

    Under § 2(1) UWG, a commercial practice is regarded as misleading if it contains incorrect information or is otherwise apt to deceive a market participant, in relation to the product, about one or more of the points listed in § 2(1)(1) to (7) UWG in such a way that the participant is caused to take a commercial decision that he would not otherwise have taken. In any event, the commercial practices listed in the Annex to the UWG are regarded as misleading under § 2(2) UWG. In light of this, in the case of the misleading element of § 2 UWG it must generally be examined how an average addressee understands the contested announcement, whether that understanding corresponds to the facts, and whether information that is incorrect according to this criterion is apt to cause him to take a commercial decision that he would not otherwise have taken.

    If a commercial practice is misleading in this sense under § 2(1) UWG, it is unfair and therefore prohibited, without it being necessary also to examine whether professional diligence was observed; in particular, what matters is not whether the incorrectness of one’s own statement was recognisable to the advertiser, but only its objective incorrectness. Advertising with a top position is (just like comparative advertising) regularly measured against the element of § 2(1)(2) UWG.

    It is objectionable under competition law if the – seriously and objectively verifiably asserted – top position does not correspond to the facts, or if the announcement is otherwise apt to mislead the relevant public. Market leadership is generally determined by market share, which reflects the economic success of an undertaking. Claiming a top position – for example, as the largest company in Austria – therefore presupposes that there actually is a steady and substantial lead over all competitors in Austria. If the contested assertion of a top position does not correspond to the facts, or if the information is incomplete, a misleading commercial practice is present.

  • On identical surnames as word marks

    On identical surnames as word marks

    A registered trade mark does not entitle its proprietor to prohibit a third party – where that third party is a natural person – from using their name or address in the course of trade, provided that this accords with honest practices in industrial and commercial matters (OGH 18 October 2022, 4 Ob 131/22a).

    Under § 10(1) MarkSchG, the registered trade mark grants its proprietor, subject to the preservation of earlier rights, the exclusive right to prohibit third parties from using, in the course of trade without his consent, (i) a sign identical to the trade mark for goods or services identical to those for which the trade mark is registered; (ii) a sign identical or similar to the trade mark for identical or similar goods or services, where, as a result, there exists for the public a likelihood of confusion which includes the likelihood that the sign is associated in the mind with the trade mark.

    The use of a trade mark as part of a company name is to be refrained from where it serves to identify goods or services; only against a – here undisputedly absent – purely company-name use would a trade mark in principle not be protected. As an exception permitting use, § 10(3) MarkSchG also provides that the registered trade mark does not entitle its proprietor to prohibit a third party – where that third party is a natural person – from using their name or address in the course of trade, provided that this accords with honest practices in industrial and commercial matters (subparagraph 1). As an exception to trade mark law, this provision is to be construed narrowly.

    Where an (earlier) registered trade mark is – as here – incorporated in its entirety into another sign, a likelihood of confusion is, in the case of similarity or identity of goods and services, regularly to be assumed, and this even where further elements are present as well. In the case of a sign composed of word and image, the word element is generally decisive for the overall impression, because commercial dealings usually tend to orient themselves by this keyword – provided it is distinctive – and it is above all this word that is retained in the memory. It is also tenable in the individual case to take the view of the appellate court that, in an overall assessment, the addition of a first name here does not change anything about the likelihood of confusion, especially since the public, in view of the use of the plaintiff’s word mark regarded as dominant, will not regularly assume that the addition of „Norbert“ is more than merely a marketing measure to differentiate similar products which, however, originate from the same manufacturer or at least from economically linked undertakings.

  • New developments on the justification of dismissals

    Recently, against the background of the COVID-19 pandemic, the Supreme Court issued a decision on the justification of dismissals of „querulous“ employees, from which it can also be inferred, for situations without any COVID connection, that the employer need not accept private opinions voiced within the workforce that conflict with important company concerns or objectives (OGH 25 May 2022, 8 ObA 24/22w).

    In the facts underlying the Supreme Court’s decision, the employee announced, in a circular email „couched in a missionary tone“ to all staff in his area of work at a provincial hospital, that he would defy justified instructions of the employer regarding the COVID access tests, or would comply with them only under conditions dictated by himself. The employment relationship was terminated by the employer on account of this conduct.

    The justification put forward by the employee in the proceedings – that he was free to hold and express, regarding the reasonableness of the instructions, an opinion deviating from the „mainstream“ – was not called into question by any of the instances. This justification did not, however, help the claimant, because, according to the findings, the reason for his dismissal was not his opinion and the expression thereof as such, but the manner in which he expressed it towards the workforce („missionary“), thereby unsettling the workforce. According to the entirely correct assessment of the Supreme Court, the employer has an overriding interest in avoiding an unsettling of the workforce through statements presented in such a manner.

    The decision certainly has a significance going beyond the criticism of COVID measures when it comes to dismissing employees who position themselves, through their statements, against important company concerns or who work against such concerns.

  • Right of first refusal of legal entities in mergers

    Right of first refusal of legal entities in mergers

    In the case of a merger by absorption pursuant to § 1(1)(1) GenVG, a right of first refusal granted to the transferring cooperative passes, by way of universal succession, to the acquiring cooperative (OGH 23 June 2022, 5 Ob 215/21k).

    Under the mandatory provision of § 1074 ABGB, a right of first refusal can neither be assigned to a third party nor transferred to the heirs of the entitled person. This non-inheritability is intended to set a temporal limit to the restriction on free commerce contained in the right of first refusal. A right of first refusal can also be granted to a legal entity. It then lapses upon that entity’s dissolution. The provision of § 1074 ABGB corresponds in substance to the likewise mandatory provision of § 1070 ABGB. According to the latter, the right of repurchase, too, cannot be transferred by the entitled person either to the heirs or to another. Under the more recent case law of the Supreme Court, in the case of a universal succession under company law the rights of repurchase and first refusal granted to the transferring company pass to the acquiring company by virtue of the universal succession associated with such company-law transactions; this was expressly held for the case of a merger under § 96 GmbHG, §§ 220 et seq. AktG, the merger on the formation of an SE and the assumption of assets under § 142 UGB.

    Pursuant to § 5 GenVG, the registration of the merger by absorption in the cooperative register at the seat of the transferring cooperative brings about the transfer of that cooperative’s assets to the acquiring cooperative and the extinction of the transferring cooperative. The merger is thus a case of legal succession by universal succession. The reason underlying the more recent case law on the fate of the rights of repurchase and first refusal in the case of a merger – namely that in this form of universal succession no liquidation takes place and the transferring cooperative is absorbed into the acquiring cooperative – therefore also applies to a merger by transfer of the assets of a (transferring) cooperative as a whole to another (acquiring) cooperative (merger by absorption pursuant to § 1(1)(1) GenVG).