The facts of the case: A classic crypto scam case
An investor invested in Bitcoin via the Bitpanda trading platform. After being contacted by a putative advisor, she granted him remote access to her computer using the „AnyDesk“ software. Subsequently, Bitcoins worth 47,400 EUR were transferred from her wallet to an external wallet address. The investor then sued Bitpanda for a refund of the amount.
The plaintiff's legal argument
The plaintiff argued that these were unauthorized payment transactions and that Bitpanda was obligated to provide a refund pursuant to Section 67 of the 2018 Payment Services Act (ZaDiG 2018). In addition, pursuant to Section 87 of the 2018 Payment Services Act (ZaDiG 2018), the company should have implemented strong customer authentication for transfers.
The groundbreaking decision of the Supreme Court
The Supreme Court clarified that Bitcoin is to be classified neither as banknotes and coins, nor as scriptural money or e-money. Since the Payment Services Act 2018 (ZaDiG 2018) applies only to „monetary amounts,“ Bitcoin transactions do not fall within its scope. This also means that crypto service providers are not subject to the strict security requirements of the ZaDiG.
Outlook: The MiCA Regulation introduces new regulations
In its decision, the Austrian Supreme Court (OGH) also referred to the EU Regulation on Markets in Crypto-Assets (MiCA), which will apply starting December 30, 2024. For the first time, this regulation will create a comprehensive legal framework for crypto services and also establish requirements for the security of crypto transfers.
Practical significance for investors
The decision makes it clear that crypto investors do not enjoy the same legal protection as with traditional banking transactions. This makes it all the more important to exercise special caution when storing cryptocurrencies and never to grant third parties access to private keys, seed phrases, or wallets.
Conclusion and Recommendations for Action
The Supreme Court decision provides further clarity on the legal treatment of cryptocurrencies in Austria. At the same time, it highlights the need for personal responsibility and preventive measures when investing in virtual assets and using cryptocurrency platforms.
With our expertise in the fields of cryptocurrencies and cybercrime, we are happy to assist you in securing your business legally or enforcing your claims. Contact us for a comprehensive consultation.
For further information and individual consultation, please feel free to contact us Roman Taudes (taudes@atb.law) and his team are available at any time.
