Cashing in on drivers

“Zupf di” continues to cash in despite court ban

Wrong turn? In some cases you have to pay for it. But it depends on where . . .

(Bild: zVg und beim bild ©spuno – stock.adobe.com Krone KREATIV,)

You are driving to a foreign region. Oops - you've taken a wrong turn. You turn around at the next opportunity. A week later, you receive a letter with a hefty fine. These cases are becoming more frequent. The company that sent out demands for payment with the threat of legal action for disturbance of possession continues to do so, even though it has lost twice in court. Here's the full story.

With five domains, from zupfdi.at to schleichdi.at, a company has developed a business model with which it collects money for alleged wrong parking or driving on private property. The "Krone" reported: With photos of installed cameras in the insert, drivers were sent written requests for payment - due to repeated offenses of 399 euros each, a man from Wolkersdorf was even supposed to pay almost 1600 euros.

Class action by the VKI successful - at least for the time being

Not even the successful class action by the Association for Consumer Information (VKI) at the Supreme Court (OGH) could stop the company: A new company is in the game and the homepage has been adapted - advertising slogan: "Version 2.0".

So caution is still the order of the day, especially if you spot suspicious warning signs!

How to circumvent the OGH ruling
The Supreme Court ruled that the previous demands for payment were inadmissible as the company lacked the authority to take legal action for disturbance of possession. The company has now decided to continue the business model with the involvement of a lawyer: This is because there is thus no longer a breach of the lawyer's monopoly on representation.

What to do with "old" payment requests
The consequence: Anyone who has received a payment request after the Supreme Court ruling came into force (effective date 25.1.2024) should not respond to it - as it has lost its validity.

zupfdi.at also deals with this in detail on the new homepage (menu item: FAQs): In these cases, the intention is to send a further, legally valid letter - quote: "with the same lump sum". Whether this will actually be done in view of the precarious situation (change of company, court rulings) seems questionable, however. So in this case: don't pay and wait and see, if necessary contact your lawyer or the legal department of the automobile club.

VKI on "new" payment letters

• Reaction: As the settlement may and will now be carried out through the direct involvement of lawyers, action should be taken: Return a "cease and desist" letter.
• Situation: Since, according to case law, only the legal expenses incurred must be reimbursed, there is no legal basis for paying the 399 euros demanded by the company.
• Recommendation: According to the Lawyers' Fees Act, a reimbursement of costs for the demand letter of EUR 100 or less would be appropriate. It is not yet fixed - but according to the VKI, a transfer of this amount could possibly avoid follow-up costs.

ÖAMTC and ARBÖ: 40 new cases per month
The "Krone" went in search of the question: Is it still possible to drive without penalty in Lower Austria? The two drivers' clubs ÖAMTC and ARBÖ are addressing this question. They both speak of an increase in the number of cases and each report an average of 20 new cases per month.

"Bullying exploitation of a legal situation"
Some cases are justified, but often it is "a harassing exploitation of this legal situation", as ÖAMTC chief lawyer Martin Hoffer says. Because, unlike the VKI, a private individual cannot file a class action, the proceedings end at the regional courts as the highest court of appeal - the amount in dispute is simply too low for the Supreme Court.

"If you drive onto private property once for a short period of time to turn around on the side of the road, this is not a violation of property rights, at least in the area of the Wiener Neustadt Regional Court"

ÖAMTC-Chefjurist Martin Hoffer

Chance of "impunity" in selected court districts
"The question of whether you can still drive off the road free of charge depends on where it happens," summarizes Hoffer. Because it always depends on the respective regional court as the highest instance as to how the legal situation is assessed there. "If you drive onto private property for a short period of time to turn around on the side of the road, this does not constitute an infringement of property rights, at least in the Wiener Neustadt provincial court and a few others in Lower Austria," he gives an example. In Vienna, however, this would be the case.

Protection of motorists vs. protection of property
The expert also emphasizes that the ÖAMTC proposed changing this law to the Ministry of Justice some time ago. "They are rather defensive, which in my opinion is quite understandable. The regulations are not too narrowly defined so as not to make classic possession protection more difficult," says Hoffer, highlighting the other side of the coin. It would therefore still be up to the courts to encourage potential profiteering.

ARBÖ: Maximum demand tariff
ARBÖ, on the other hand, would like to see the law adapted to the requirements of road traffic and a maximum claim tariff of 70 euros plus 15 euros cash expenses. This would have been the result of a judgment obtained by the VKI. Both motorists' clubs at least expect this issue to remain "a permanent one".