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Case Details

Case Details
National ID 4 Ob 130/03a
Member State Austria
Common Name link
Decision type Other
Decision date 07/10/2003
Court Oberster Gerichtshof (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 1, 2. Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, ANNEX I, 1.

1. The following clause in standard terms and conditions (STCs) contravenes § 6 para 1 line 9 of the Austrian consumer protection law (KSchG): “We accept no liability for the following damage or incidents regardless of whether they occur within or outside the bounds of the contract; this applies equally to damage and incidents caused either through neglect or directly by us: a) consequential damage or unusual or unforeseeable damage or loss; b) other indirect damage; c) an infringement of other contracts. Consequential damage includes in particular loss of income, forfeit of profit and loss of interest and sales markets.”
2. “We are not liable for loss of, damage to or incorrect delivery of a package where this is caused by circumstances beyond our control. Such circumstances include: a) a defect in, or the natural properties of, the goods even where we were aware of this when we received the package; b) the postal service, another courier or any other third party, with which we have signed a contract requiring them to deliver packages to locations that we do not directly serve. We are also not liable if the sender did not request an agreement with a third party or was unaware of such an agreement. We equally accept no liability for damage to, or deletion of, electronic images or photographs caused by electricity or magnetic force.” The above clause in STCs contravenes § 6 para 1 line 9 KSchG insofar as it absolves the courier firm of any responsibility for the conduct of the postal service as well as another courier or any other third party with which the defendant has agreed a transportation contract. However, the part of the clause that excludes liability for damage to, or deletion of electronic images or photographs caused by electricity or magnetic force is permissible.
3. The following clause in STCs contravenes § 879 para 3 of the Austrian Civil Code (ABGB) and is therefore not permissible: “You agree that we are permitted to open and check packages at any time and for any reason.”
4. “Should the recipient or third party fail to pay, you agree to cover all courier costs as well as any other costs, fees or taxes that are incurred.” This clause in STCs contravenes the transparency requirement laid down in § 6 para 3 KSchG. In addition, should the firm use this clause to demand the reimbursement of costs that have been unnecessarily incurred, then it also contravenes § 879 para 3 ABGB. It is therefore not permissible.
5. The following clause contravenes § 6 para 1 line 9 KSchG and is therefore not permissible: “If you wish to claim compensation, you must put your claim in writing and we must receive your claim within 30 days of our receipt of the package. Please hand your claim in at our nearest branch.”
6. The following clause in STCs contravenes § 6 para 1 line 9 KSchG and is therefore not permissible: “In accordance with the transportation terms outlined below, the company and its employees and agents (assistants) are firstly in no way liable for certain forms of loss or damage, and, secondly, where they are liable, this liability is restricted to the upper limit detailed in point 8 below.”
7. The following clause in STCs contravenes § 6 para 1 line 9 KSchG and is therefore not permissible: “Where a package is lost or damaged, whatever the reason may be, our liability is limited to the lowest of the following figures: a) 1750 Austrian Schillings; b) the actual value of the loss or damage you have suffered; c) the actual value of the package. This does not include the market value or the ideal of the package to you or any other individual.”
8. The following clause in STCs contravenes § 6 para 1 line 9 KSchG and is therefore not permissible: “The actual value of a package can be no higher than the retail price you originally paid plus 10%.”
9. The following clause in STCs contravenes § 6 para 1 line 9 KSchG and is therefore not permissible: “Please bear in mind, however, that our transportation insurance does not cover consequential damage or loss or damage caused by delay. If you did not tick the ‘yes’ box for insurance on the first page of the courier letter, then you accept all risks of loss or damage.”
10. “We will endeavour to the best of our ability to deliver your package in accordance with our scheduled delivery times. These are, however, not guaranteed and not part of the contract. We are not liable for any delays.” The second sentence of the above clauses in STCs contravenes § 6 para 1 line 9 KSchG. The first sentence is permissible as there is no obligation to guarantee delivery times.
The Austrian Consumers’ Association (one of the bodies entitled under §§ 28 ff KSchG to bring a class action) filed a lawsuit against the defendant, an independent Austrian courier firm and part of the DHL global network, requesting that it desist from using several clauses in its STCs, as well as equivalent terms, in its dealings with consumers. The Association held that the relevant clauses were in part “grossly discriminatory” as per § 879 para 3 ABGB, in part in breach of the transparency requirement laid down in § 6 para 3 KSchG and in part unacceptably limited the defendant’s liability as per § 6 para 1 line 9. The defendant applied for the case to be dismissed, arguing that the STCs were in line with the CMR and Warsaw Conventions, which take precedence over the KSchG.
At the outset, the Austrian Supreme Court (OGH) dismissed as irrelevant the question raised by the defendant as to whether STCs are subject to the KSchG if they simply use those terms of international conventions on transport law that apply to transportation contracts. It argued that the relevant STCs applied to all forms of goods transportation, whether by air or by road, domestic or international. Thus, even where individual clauses correspond to the provisions of international air transport conventions, it does not follow that they are not subject to other laws if they apply to road transport. In this context, the OGH held that Directive 93/13/EEC requires Member States’ legal and government provisions on unfair terms and conditions to be aligned. Art 1 para 2 excludes clauses in contracts that are based on binding legal provisions, regulations or principles of international conventions to which Member States or the Community are contractual parties, especially in transport. From the reasons cited by the OGH, there is a clear assumption that in such a case there is no danger of the existence of unfair clauses, which would constitute grounds for restricting the applicability of the Directive. Thus, in the opinion of the OGH, the Directive does apply to transport law, though its applicability is limited where contract clauses are based on national law or international conventions.
In view of the broad scope of the verdict, please refer to the aforementioned rulings in respect of the individual clauses.
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