2024-03-07 09:03:10
The respondent works in the security industry as well as data processing and information technology and has the appropriate trade licenses. On its homepage “zupfdi.at”, the respondent offers to take notice of alleged disruptions to property through the illegal parking of vehicles. Those affected can report such a property disturbance online and assign their claim to the respondent. The respondent then investigates the (alleged) illegal parking offender at the authorities and sends him an unprejudiced offer to refrain from filing a property interference lawsuit in exchange for payment of a lump sum. The person who reports the property disturbance is promised a “commission” of 50% of the amount achieved. According to the respondent’s general terms and conditions, the customer grants the respondent “joint ownership of the disturbed property”.
The applicant, a law firm, is requesting the issuance of a registered association according to which the respondent must refrain from sending letters of demand to (potential) violators of property on behalf of third parties in the course of business transactions, with which they are required to submit cease-and-desist declarations, pay sums of money or conclude a contract comparison will be requested. The respondent’s approach should be qualified as pre-procedural intervention on behalf of third parties in legal matters. However, this activity is reserved for lawyers in accordance with Section 8 RAO. As a result, the respondent also violates Section 1 Paragraph 1 Z 1 UWG (“Advantage through breach of law”) because she carries out the work of a lawyer without being bound by the restrictive legal professional law.
The respondent objected that she had joint ownership of the affected parking spaces, which is why she was asserting her own claims; There is therefore no activity within the meaning of Section 8 RAO.
The lower courts followed the respondent’s opinion and dismissed the application. In its decision of January 25, 2024, the Supreme Court granted the applicant’s appeal and issued the requested eV.
Invalid granting of possession under property law:
The respondent offers its customers that their property will be protected; this also corresponds to the respondent’s central advertising messages. Customers are advised not to sue themselves, but to instruct the respondent. The respondent’s business model is therefore aimed at representing the interests of the customers (and not their own interests) once morest the property disturber and at enforcing the resulting claims out of court. The respondent’s legal ownership of the affected properties therefore fails because there is no use in its own name (§ 312 ABGB). In addition, the respondent, as a mere guard, has neither material nor legal ownership of the thing (property) being guarded because she has no will to have the thing for herself (see Section 309 ABGB). There is therefore no effective grant of joint or legal ownership to the respondent under property law.
Violation of the legal representation monopoly:
Regardless of the fact that the respondent does not formally act as a representative of the customers, the OGH confirmed a violation of the lawyer’s monopoly on representation through the “hidden party representation” on the part of the respondent. Such hidden party representation is also covered by the ratio legis of Section 8 Paragraph 2 RAO, especially since the chosen construction primarily serves to disguise the fact that the interests of the customers served by the respondent are to be enforced. This procedure, which is aimed specifically at circumventing Section 8 Paragraph 2 RAO, is therefore also not justifiable under fair trade law.
Success of the VKI in parallel proceedings:
The business model of “zupfdi.at” currently also concerns the VKI. In association proceedings (§ 28 KSchG) once morest Fumy – The Private Circle GmbH (formerly the parent company, now sister company of the respondent in this proceedings) on behalf of the Ministry of Social Affairs, Fumy was partially legally ordered to cease and desist by the HG Vienna (29 Cg 7/23h). six clauses condemned. You can find more information regarding this procedure here.
Consequences of the decision:
The clarification of the ineffectiveness of the granting of (joint) ownership to the respondent is important, among other things, because claims for protection of ownership cannot be effectively assigned without transfer of the underlying ownership (due to other division of interest and protection of interest). It follows that the respondent (and other people who operate this business model) lack active legitimacy for any property interference proceedings. The same follows from the partial recognition judgment of the HG Vienna (29 Cg 7/23h), since the defendant Fumy is sentenced to refrain from using, among other things, that clause (K1), which regulates that Fumy customers grant joint ownership of the properties in question and assign their property rights to Fumy.
OGH January 25, 2024, 4 Ob 5/24z
1709802327
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