Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgment 8 Ob 107/16t
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 30/05/2017
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: consumer rights, Injunction
  • Artikel der Richtlinie
    Injunctions Directive, link
  • Leitsatz

    ECLI:AT:OGH0002:2017:0080OB00107.16T.0530.000


    If there is a direct and concrete risk of an infringement on others’ legal rights, an action for a preventive injunction is permissible.

  • Sachverhalt

    The plaintiff is an association entitled to an action for injunction pursuant to articles 28, 28a KSchG. The defendant operates a banking business and offers its services throughout Austria. It concludes credit and loan agreements with consumers in the course of its business activities. These credit agreements rely on interest escalation clauses formulated by the defendant. These consist of a variable indicator (often: LIBOR) and a fixed premium. From March/April 2015, the defendant informed its customers that, in view of the unforeseeable situation of a negative interest rate indicator, the contractually agreed premium was to be used as the minimum interest rate as long as the reference interest rate remained negative.

  • Rechtsfrage

    Is a preventive injunction permissible?

  • Entscheidung

    If there is a direct and concrete risk of an infringement of others’ legal rights, an action for a preventive injunction is permissible according to settled case law. This possibility of an action for a preventive injunction has already been affirmed for the association proceedings pursuant to article 28 KSchG. In this case, the plaintiff objected to communication from the defendant bank to numerous consumer borrowers on the grounds of a violation of statutory prohibitions. The defendant, thus, unilaterally announced a course of action which meant abandoning a clear arrangement included in a large number of credit agreements concluded with its customers. The plaintiff asserted, as a result, that this was an infringement on the borrowers’ rights - sufficiently detailed and also imminent after the submission of the action - by the procedure specifically envisaged by the defendant in the calculation of the interest to be paid by the customers. The question of the extent to which interest has already been charged on the basis of the criteria mentioned in the defendant's communication is, therefore, irrelevant. The prerequisites for a (substantive) examination of these allegations in the class action proceedings are therefore present.

    Volltext: Volltext

  • Verbundene Rechtssachen

    Keine Ergebnisse verfügbar

  • Rechtsliteratur

    Keine Ergebnisse verfügbar

  • Ergebnis

    The Supreme Court upheld the appeal in part. On this basis, the lower court judgments are amended.