Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgment 10 Ob 13/17k
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 21/03/2017
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: consumer rights, Injunction
  • Artikel der Richtlinie
    Injunctions Directive, Recitals, (4)
  • Leitsatz

    ECLI:AT:OGH0002:2017:0100OB00013.17K.0321.000


    The possibility of a preventive injunction also exists in class action proceedings pursuant to article 28a KSchG. This corresponds to the nature of the class action process in which a preventive content control is to be carried out, and is also in line with the objective pursued by the Injunctions Directive (2009/22/EC), which is to put an end to infringements that hinder the collective interests of consumers in timely fashion.

  • Sachverhalt

    The defendant bank uses interest rate escalation clauses linked to LIBOR and had sent a letter to foreign currency borrowers in February 2015 pointing out the following:

    "Since the indicator agreed upon in the existing contract is currently negative or could become negative, we refer to the following for clarification: As long as the negative indicator does not exceed the premium, the interest calculation does not change, so that the borrowing rate to be paid by the customer can also be lower than the premium (e.g. indicator -0.5 % and premium 1.2 % = borrowing rate 0.7 %). If, however, the debit interest rate becomes arithmetically negative, we do not apply it, but - based on our legal opinion that the borrower, not the lender, has to pay interest in principle - a debit interest rate of 0 (0.00001 %). The borrower, therefore, does not receive any interest payment from the bank for the loan even if the negative indicator exceeds the premium purely mathematically (e.g. indicator -1.3 % and premium 1.2 % = borrowing rate 0.00001 %, not -0.1 %).”

  • Rechtsfrage

    Is there also the possibility of applying a preventive injunction in class action proceedings pursuant to article 28a KSchG?

    How is the enumeration in article 28a KSchG of the protective areas to which an injunction is applicable to be understood?

  • Entscheidung

    The possibility of a preventive injunction also exists in class action proceedings pursuant to article 28a KSchG. This corresponds to the nature of the collective action process in which a preventive content control is to be carried out, and is also in line with the objective pursued by the Injunctions Directive (2009/22/EC), which is to put an end to infringements that hinder the collective interests of consumers in timely fashion. The risk of infringement must be affirmed if the defendant threatens to immediately and specifically implement the course of action it announced in the letters it sent to its debtor customers in February 2015.

    Article 28a KSchG lists the relevant areas of protection for an injunction action in full (here: consumer credit relationships), but within the individual areas of protection, it contains neither a complete nor a demonstrative list of these legal obligations and prohibitions, the violation of which can trigger an injunction claim. Therefore, legal requirements or prohibitions according to the ABGB (Civil Code) can also be considered. For reasons of legal certainty alone, however, these must be specific statutory prohibitions or obligations. The "obligation to abide by the contract" does not constitute a sufficiently specific statutory requirement within the meaning of article 28a (1) KSchG. Rather, it is one of several foundational principles of legal transaction law which is expressed in various provisions of private law.

    Volltext: Volltext

  • Verbundene Rechtssachen

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  • Rechtsliteratur

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  • Ergebnis

    The Supreme Court dismisses the appeal.