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Case Details

Case Details
National ID 4 Ob 92/03p
Member State Austria
Common Name link
Decision type Other
Decision date 29/04/2003
Court Oberster Gerichtshof (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 4, 1. Distance Selling Directive, Article 4, 3.

2. Providing this basic information via another remote means of communication does not meet these requirements. This is because it is unreasonable for the consumer to switch the means of communication and it can’t be assumed that this other means of communication (in this case, the internet) is universally available to everyone.
1. The Distance Selling Directive aims to ensure that suppliers are obliged, at the outset of telephone conversations with consumers aimed at agreeing a distance selling contract, to provide the consumer explicitly with sufficient information to be able to decide whether or not to proceed with the conversation.
The defendant ran a paid-for telephone information service. As it did not have its own telephone network, it provided its information service via a network run by another operator. The end customer was billed for the service via the standard telephone bill. The defendant did not provide its customers with the name and address of the company at the beginning of the conversation and also gave no price information unless expressly asked. When the number was dialled, the caller began to incur a charge as soon as a member of staff answered the phone. This charge was collected by the network operator in its own name. On its website, the defendant provided information about the caller’s duty to pay the call charges for the information service and also listed these charges. The defendant’s billboard advertising gave a non-binding recommended retail price. The company’s name and address were not given either on the internet or on billboard posters.
The Austrian Consumers’ Association brought a class action under §§ 28 ff KSchG against the defendant for an injunction preventing it from using, in its commercial transactions with consumers, contracts agreed via distance selling (ie via a telephone information service) without notifying consumers of its name and operating address or providing price information as per § 5c KSchG before the consumers made their statement of intent to enter into a contract (ie at the beginning of the telephone call). By systematically providing paid-for information by telephone, the defendant was running a sales and service operation designed for distance selling. However, it was not providing its customers with its name and address at the beginning of the conversation as it should under § 5c para 1 KSchG, nor was it giving price information.
The defendant applied for the case to be dismissed. It argued that by dialling the number, the caller was exercising his right under the telephone service agreement he had with the relevant provider to call telephone services and was thus liable for the charges specified in the telephone service agreement. The caller had no contractual relationship with the defendant, who in turn had no claims against the caller. Thus, the defendant did not in fact have any case to answer. Even if there were a contractual relationship, the defendant had not infringed § 5c para 1 KSchG since it had made comprehensive information about the company, its services and its prices available to any prospective customer online. Even the billboard posters referred to the charges. The requests for comprehensive information to be provided via a pre-recorded message would, because of the significant time involved, mean that the consumer incurred further costs. It was not possible to provide the pre-recorded message free-of-charge for technical reasons.
Both the Court of First Instance and the Court of Appeal upheld the claim. They ruled that, by offering services over the telephone, the defendant was running a distance selling operation as per § 5a KSchG. Therefore, it was obliged under § 5c para 1 KSchG to provide the consumer with the company name and operating address, as well as details of service prices. This, however, had not happened during the telephone conversations. The online information was not adequate for a telephone information service accessed only by phone.
The OGH rejected the defendant’s appeal, ruling that §§ 5a to 5j KSchG were designed to transpose the Distance Selling Directive, which aims to confront the risks inherent in distance selling. It aims to ensure adequate consumer protection by laying down duties to provide information. Under § 5a KSchG contract is agreed by distance selling when it is concluded using exclusively one or more remote means of communication. Thus, there could be no doubt that the aforementioned provisions applied to the case in question.
As a rule, a contract is agreed by distance selling when a consumer – reacting to an advertisement from the supplier, which can be viewed as an invitation to make an offer – makes his statement of intent to enter a contract (which can be viewed as an offer). This is accepted in turn by the supplier when he sends off the goods that have been ordered (actually meeting the consumer’s request). Precisely how a contract agreed by telephone is construed in dogmatic terms did not require further examination in this particular case. There was no doubt that using a telephone information service should be viewed in legal terms as a distance selling transaction, which is then subject to the provisions in §§ 5a ff KSchG. Ordinarily, the caller’s contract would be with the company operating and providing the information service as per § 5a para 1 KSchG. The fact that this company used the services of a third party in connecting the call and billing for the services had no bearing on this since the service that was the principal object of the contract (providing a telephone number for a fee) was provided by the information service provider to the caller.
Moreover, the defendant’s argument that it had fulfilled its duties to provide information under § 5a para 1 KSchG by providing the requisite information on a universally accessible webpage was not valid. Both the Distance Selling Directive and the regulations designed to transpose it aimed to ensure that the consumer was given adequate information at the beginning of the telephone conversation to enable him to make an informed decision about whether or not to proceed with the call. This aim could only be achieved if the consumer were given basic information at the very outset and without having to ask for it. The basic information included the company’s name, operating address and price information. It was not sufficient to make this information accessible on an internet homepage, because by making the basic information accessible on a different remote means of communication, the defendant was requiring unreasonable additional effort from the consumer. In addition, it could not be assumed that this other remote means of communications is universally available. The defendant had therefore failed to fulfil its duties to provide information under § 5c KSchG and the claim should be upheld.
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