The defendant’s appeal was unsuccessful. With regard to the plaintiff's appeal, the OGH revised the verdict and upheld the original claim in full.
With reference to precedents in case law covering the clauses in question, the OGH ruled that these were subject to the provision laid down in § 6 para 1 line 5 KSchG. Any provision that allows only for a figure to be rounded up, to the benefit of the supplier, without any objective justification for doing so, runs counter to the aims of the KSchG and is therefore not permissible.
The OGH contested the defendant’s argument that there was no danger of repetition with regard to the unacceptable clause on the rounding of interest rates. The court ruled that, on the basis of precedents in case law, the danger of repetition was only fully removed when the request made by a body entitled under § 29 KSchG to bring a class action was fully complied with. It was to be regarded that a danger existed when the supplier, despite receiving a warning, failed to make a pledge to desist. A danger of repetition could only be ruled out if it were certain that the supplier was not using the unacceptable illegal or immoral terms (or equivalent terms) in his STCs.
Following the plaintiff’s appeal, the OGH clarified in detail the meaning of the terms “standard terms and conditions” and “pro forma contracts”. It stated that because legislators invariably used the two terms together, it was immaterial whether a clause was used in a pro forma contract or in STCs. Moreover, under existing case law, an injunction had to be worded in such a way that the interdicted party could not readily circumvent it. The Supreme Court drew the conclusion that the injunction against the defendant extended to the use of the unacceptable clauses in its STCs, even though to date they had only appeared in its pro forma contracts and not in its STCs.