• Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgment 2 Ob 155/16g
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 14/12/2017
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: B2C, unfair terms
  • Artikel der Richtlinie
    Unfair Contract Terms Directive, link
  • Leitsatz


    A contractual clause contained in the general terms and conditions of an online retailer, according to which the customer (consumer) grants the retailer a "temporally and locally unlimited and exclusive license for further use of the contents for any purposes online as well as offline" for contents "posted" by him, such as customer reviews "for the duration of the underlying right", is intransparent and grossly disadvantageous.

  • Sachverhalt

    The defendant is a company domiciled in Luxembourg. It operates a mail order business and also courts consumers in Austria via its German-language website. It does not, however, have a branch in the country. Until mid-2012, it based its e-commerce contracts on its general terms and conditions.

    The plaintiff is an association entitled to bring an action according to article 29 KSchG.

  • Rechtsfrage

    Examination of various clauses of general terms and conditions.

  • Entscheidung

    Inadmissible clauses and the Court’s reasoning:

    1 " does not recognise deviating conditions of the purchaser unless has expressly agreed to their validity in writing.”

    Violation of article 10 (3) KSchG: The legal validity of informal declarations by the seller or his representatives cannot be contractually excluded to the detriment of the consumer.

    2. “If you are currently or in the future using services offered by, in addition to these Terms and Conditions, the policies and terms of service or use applicable to those services shall apply. These Terms and Conditions shall prevail over these General Terms and Conditions in the event of conflict ".

    Violation of article 6 (3) KSchG: The Supreme Court has already repeatedly considered the blanket reference to supplementary conditions to be intransparent. Such a reference typically leads to the fact that the consumer has to select from various general terms and conditions those terms which also apply to the specific contractual relationship.

    3. “If is not able to deliver the ordered goods through no fault of its own because the supplier of does not fulfil its contractual obligations, is entitled to withdraw from the contract with the purchaser. (…)"

    According to article 6 paragraph 2. 1 KSchG, a contractual term that has not been individually negotiated is not binding if the seller can withdraw from the contract without objective justification. This term also cover short-term delays in delivery by a supplier of the seller. In this respect, the right of withdrawal above is excessive as it enables the defendant to withdraw from the contract even though it could fulfil it with only a short delay. There is no objective justification for such withdrawal.

    4. "In the case of payment by invoice and in other cases with legitimate cause, examines and evaluates the data supplied by the purchaser and conducts a data exchange with other companies within the Amazon group, credit agencies (...)".

    The permissibility of the data use noted in this clause is to be assessed according to Luxembourg law. However, a review is indispensable because the clause is already inadmissible according to article 6 (3) KSchG: It is to be understood to mean that the consumer is not only informed about the data transfer mentioned therein but that he also agrees to it - by accepting the general terms and conditions. However, it is not clear what other "legitimate reason" there may be for the measures mentioned in the clause, with what objective the data is "evaluated" and with which other companies and for what purpose a "data exchange" takes place.

    5. "If the purchaser is in default, is entitled to charge a default interest rate of 5 % p.a. above the base interest rate announced by the European Central Bank (ECB). If has demonstrably incurred a higher damage caused by default, is entitled to assert these damages."

    Sentence 1 of the clause is intransparent since no such ECB announced "base interest rate" exists.

    Further, the right provided for in sentence 2 of the clause to compensate the seller for additional actually incurred damages, which according to the wording of the clause would affect the consumer even when not at fault, is inadmissible. This additional liability deviates massively from the dispositive law and therefore leads to a gross disadvantage of the consumer within the meaning of article 879 (3) ABGB.

    6. "For the decision on the availability of the payment by invoice method, we use - in addition to our own data - probability values to assess the default risk (...).”

    Violation of article 6 (3) KSchG: While Luxembourg law applies to data processing as such, Clause 6 is to be understood as meaning that the customer consents to the data processing referred therein. What this consent refers to in concrete terms, however, is unclear in the absence of a more detailed description.

    7. "The purchaser is only entitled to a right of offset if his counterclaims have been legally established or are undisputed by Furthermore, he is only entitled to exercise a right to withhold payment in so far as his counterclaim is based on the same contractual relationship".

    Violation of article 6 (1) (7) KSchG, according to which a clause is inadmissible if the consumer’s legal entitlement to withhold payment is excluded or restricted.

    8. "If the user decides to post content (e.g. customer reviews) on, he grants an unlimited exclusive license for the duration of the underlying right to further use the content for any purposes either online and offline.”

    Violation of article 6 Abs 3 KSchG: The clause is intransparent. According to its wording, it does not cover specific types of "content" that have been "posted" by the consumer. It remains open which other types of "content" (apart from customer reviews) the clause covers.

    Volltext: Volltext

  • Verbundene Rechtssachen

    Keine Ergebnisse verfügbar

  • Rechtsliteratur

    Keine Ergebnisse verfügbar

  • Ergebnis

    The Supreme Court upholds the appeal, annulling the contested judgment.