Austrian Law Blog:


Is it possible to first claim from the defendant disclosure of relevant accounting information before specifying a claim for payment in a certain amount?

Yes. Several legal provisions provide for a person’s obligation to provide accounting information. For example, if someone has been commissioned to carry out a transaction for another person, that person is obliged under section 1012 of the General Civil Code (ABGB) to render an account to his principal upon request. Or if someone has infringed a trade mark, he is obliged under section 55 of the Austrian Trade Mark Protection Act to account to the trade mark owner as of which date and to what extent his trade mark right has been infringed in order to determine the exact extent of the infringement and the claim for damages (see: Austrian Supreme Court in 4Ob97/22a). But also a person that is likely to know about hidden or concealed property can be sued for disclosure of information by the person having legal interest in the relevant accounting (see: Art XLII of the Introductory Act to the Code of Civil Procedure, EGZPO).

According to the Austrian Supreme Court, a party that is obliged to provide accounting information cannot claim compensation for its expenses in order to comply with its obligation (see: Austrian Supreme Court in 1Ob264/07s).

Whether or not a party is also obliged to make the relevant invoices available to the entitled party depends on whether the entitled party’s protected claim to accounting could otherwise not be fulfilled or at least not completely fulfilled. On the other hand it is not sufficient to just hand over only invoices and other documents to the entitled person. A person that by law is obliged to provide accounting information must explain the underlying business transactions on the basis of the documentation that is available to him.

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