The defendant’s extraordinary appeal was unsuccessful. In making its ruling, the OGH made clear that, in class action proceedings, the case should be interpreted on the basis of the worst case scenario for the consumer and that there is also no possibility of reducing the scope of the clause. By applying these core principles, the OGH argued that the clause cited above – that the leaser could claim costs from the customer if his vehicle was partially outside the designated parking space (even by just a tyre's width) – constituted gross discrimination against the consumer as per § 879 para 3 ABGB. It also stated that it is to be assumed that the consumer is the victim of gross discrimination if there are no grounds for deviating from the provision in law designed to apply to the average case. The supplier (defendant) had not provided any objective justification for imposing the penalty contained in the clause where there was only a minor infringement of the parking regulations.
The ruling also gave the OGH the opportunity to explore the question of whether the legal basis of class action lawsuits may be anti-constitutional. In his appeal, the defendant had argued that the provision in § 29 KSchG granting the listed interest groups the right to file a class action lawsuit was anti-constitutional, especially given that different interest groups may invoke this right in such a way as to distort competition. The OGH rejected this particular objection, ruling that there were no questions over the constitutionality of the provision in § 29 KSchG given that Austrian legislators were obliged under European law to enshrine this right in national law. Indeed, EU Member States are required, under art 7 para 2 of Directive 93/13/EEC, to grant organisations recognised under national law as protecting consumers the right to refer potentially unfair contract terms to the courts for a decision.