European e-Justice Portal - Case Law
Close

BETA VERSION OF THE PORTAL IS NOW AVAILABLE!

Visit the BETA version of the European e-Justice Portal and give us feedback of your experience!

 
 

Navigation path


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID 4 Ob 175/03v
Member State Austria
Common Name link
Decision type Other
Decision date 23/09/2003
Court Oberster Gerichtshof (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 4, 1.

Where a supplier provides details of his company's name, a PO box number and the municipality in which the company is based, but fails to give more precise geographical indicators (the street name), he is in breach of § 5c para 1 line 1 KSchG.
The defendant sold goods to end consumers by mail order. In mid-January 2003, she enclosed with the spring catalogue an order form addressed personally to the plaintiff together with a return coupon including a complimentary order. On these, as on all other documents sent by the defendant (such as "spare order vouchers" or invoices), the address was given as company name, registered company number and telephone number, but no precise street name. Instead, there was simply a PO box number.
The Austrian Federal Chamber of Workers (Bundesarbeiterkammer) brought a class action as per §§ 28 ff KSchG. It applied for a provisional injunction order against the defendant to stop her, with immediate effect, from sending consumers mail order documents without a precise street name, which made it impossible to infer clearly and unambiguously the firm's operating address. It argued that if the defendant, acting in a distance selling context, was not properly informing customers of her operating address before they made their formal statement of intent to enter into a contract, then she was in breach of § 5c para 1 line 1 KSchG.
The defendant appealed against the injunction, arguing that the street name had been omitted from mail order documents purely for simplicity. Since all correspondence addressed to the defendant's PO box number was delivered, there was no clear detriment for the consumer.
The Court of First Instance rejected the plaintiff's request for an injunction order. It ruled that a supplier was adequately fulfilling his duty to provide details of his name and operating address even where the information provided was general and could be reasonably acquired by the consumer without special effort. By giving the name of the company, the registered company number and the telephone number, the defendant had in no way left the consumer in the dark about her identity, meaning that the consumer could readily lodge complaints or take legal action against the defendant.
The Court of Appeal upheld the first ruling. It argued that § 5c para 1 KSchG was only infringed if the defendant's address was not given at all or would be difficult to ascertain. This was the case, for example, when only a telephone number and PO box number were provided. However, since the defendant had provided considerably more comprehensive information and the consumer could easily obtain the street name that was missing from the address, there were no grounds to impose the injunction order.
In clarifying the question of whether an address can only be regarded as being an operating address if the street name is given, the OGH explained as follows. Directive 97/7/EC covering consumer protection in contracts concluded by distance selling had been transposed by §§ 5a to 5j KSchG. The Directive aimed to guard against the particular dangers inherent in distance selling. In other words, the consumer is unable to examine the goods close-up before making a purchase and there is typically no personal consultation with the seller. The aim of introducing the relevant duties to provide information was precisely to protect the consumer from these risks. Thus, under § 5c para 1 line 1 KSchG, the consumer must, in transactions initiated in a distance selling context, be properly informed of the supplier's name and operating address before making his statement of intent to enter into a contract. This information must be made clear and unambiguous to the consumer.
The term "operating address" is essentially unknown in Austrian law. However, official summons may only be delivered to the recipient at locations detailed in § 4 of the law on deliveries. According to this, a PO box number does not constitute a suitable delivery location.
In an analogous case in Germany, the supplier must provide details of the street name of his headquarters or branch as well as his country, town and postcode before concluding an agreement. This tallies with the legal requirement that exists if § 5c para 1 line 1 KSchG is interpreted in line with the Directive – and it was this provision that tranposed art 4 para 1 lit a of the Distance Selling Directive. Since art 4 para 1 lit a of this Directive only requires that an address is provided if the consumer has to make an advance payment, Austrian and German legislators have quite legitimately gone beyond the scope of the Directive in transposing it into national law. Given that the European Union made it compulsory to provide address details in the case of advance payment, then this address must clearly be an "operating address", so that the consumer has the option of getting this advance payment reimbursed. This then means a requirement to provide an address that is a suitable delivery address for an official summons. Thus, the defendant was guilty of infringing § 5c para 1 line 1 KSchG if she was sending consumers mail order documents that provided details of the company’s name, PO box number and the municipality in which the company is based, but failed to give a precise geographical indicator. This infringement was against the general interests of the consumer because, in the case of dispute, the fact that the customer had to invest time and money in obtaining the defendant’s operating address made it more difficult for him to take legal action. Thus, the plaintiff’s appeal should be upheld.
Full Text: Full Text

No results available

No results available