English »Legal Updates
A general prohibition of suspensive effect for appeals against notices of the Financial Supervisory Authority is unconstitutional
A regulation which ruled out suspensive effect of appeals against notices of the financial market supervisory authority was found unconstitutional by the Constitutional Court. A suspensive effect was ruled out even for basic cases, which were not urgent, weren’t in connection with an emergency or didn’t have a connection with European Union law. The concerned party was only granted provisional measures before the federal administrative court in an advanced stage of the proceeding. The Constitutional Court found this to be a violation of the rule of law and the effectiveness of legal protection which is derived from it (VfGH G 257/2017-13).
3. March 2018
Non-transparent interest adjustment clause
The Supreme Court for Civil Matters regularly deals with interest adjustment clauses. Recently the court ruled that such clauses are too complicated for the average consumer unless they reference well-known reference rates (such as an EURIBOR reference rate). Clauses which are too complicated violate the requirement of transparency. The average consumer cannot be expected to understand what “weighted lending rates” mean. (4Ob147/17x)
8. February 2018
A third party doesn’t know for sure, unless…
The Austrian Banking Act prohibit banks from disclosing secrets of their customers (Sec. 38 para.1 BWG). Disclosure is defined as informing a person who didn’t know about a secret. The Supreme Court in Civil Matters specified with a recent ruling disclosure: Mere affirmative reaction to an information presented by a third party is also qualified as disclosure. According to the court, an affirmative reaction of the bank certifies the validity of such an information. (9Ob62/16g)
23. January 2018
Not assuming double-dipping
Austrian case law deducts since 2008 from general rules that asset managers must inform their clients about kick-backs which they receive from depositary banks. Since 2016 this obligation is applied to investment advisors too. In a recent decision the Austrian Supreme Court for civil matters ruled that investors who have been paying fees to their banks for investment advice, may rightfully assume that the bank does not receive any additional fee from an issuer or reseller. However in order to be actually eligible to damages, a conflict of interest is required in addition to this – for which the burden of proof is upon the bank though. (8Ob109/16m)
8. January 2018
FMA keeps its competence for sanctions
Credit institutions made an appeal before the federal administrative court against high fines of the Financial Market Authority. The federal administrative court was of the opinion that the regulations of the Banking Act were a core matter of criminal jurisdiction and the fines by an authority rather than a court were therefore unconstitutional. The Constitutional Court dissented, and changed its previous legal view in this matter. The previous distinction between judicial criminal law and administrative criminal law does not do justice for the variety of possible future cases. The lawmaker is not obligated to delegate legal procedures of the banking act about imposing high monetary fines under the competence of the criminal courts (G 408/2016 et al.).
18. December 2017