Case law

Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 7 Unfair Contract Terms Directive, ANNEX I, 1.

1.In class action proceedings, it is typically regarded that a danger of repetition exists when the supplier, despite receiving a warning from a body entitled under § 29 KSchG to file a class action lawsuit, fails to make a pledge to desist as per § 28 para 2 KSchG.
2.A danger of repetition can only be ruled out if it is certain that the supplier is not using the unacceptable illegal or immoral terms (or equivalent terms) in his STCs.
3.It is not necessary to differentiate between pro forma contracts and STCs. This is because the legal consequences of using illegal clauses are identical, irrespective of whether the relevant form of words, designed for use in multiple contracts, is to be regarded as belonging to STCs or a pro forma contract (which Austrian legislators invariably bracket together).
4.An injunction under § 28 KSchG must be worded in such a way that the interdicted party cannot readily circumvent it. Thus, an injunction under § 28 KSchG brought solely against the use of illegal clauses in a pro forma contract may also refer explicitly to STCs.
5.While § 6 para 1 line 5 KSchG does not explicitly mention the rounding of figures, the provision nonetheless also applies to clauses covering such rounding arrangements. Thus, any such clause that provides only for a figure to be rounded up, to the benefit of the supplier, without any objective justification for doing so, is not permissible.

The Association applied for an injunction against the defendant, ordering that it desist from using the aforementioned clauses or equivalent terms in its STCs and/or in its pro forma contracts. Furthermore, it requested an injunction ordering the defendant to stop applying the clauses that had been unlawfully agreed. Finally, it requested that the verdict be made public.
The defendant applied for the case to be dismissed. It argued, inter alia, that the disputed clauses could not cause rates to spiral by rounding them up. Moreover, there was no danger of repetition since the company had not been using the clauses since 1st April 2003.
The Court of First Instance rejected the injunction order with respect to the use of the unacceptable clauses in STCs. For the rest, it upheld the claim. The Court of Appeal concurred with the verdict.

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.

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