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Case Details

Case Details
National ID 7 Ob 117/05i
Member State Austria
Common Name link
Decision type Other
Decision date 11/07/2005
Court Oberster Gerichtshof (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, ANNEX I, 2. Package Travel Directive, Article 4, 4.

1. The clause under examination was to be scrutinised on a “worst case scenario for the consumer” basis. Under this clause, the tour operator reserved the right to increase the trip price confirmed at the time the booking was made for reasons related to specific adjustments (listed exhaustively and not to be determined according to the operator’s will) provided (only) that “the trip dates were more than two months after the contract is concluded”. This clause contravenes the transparency requirement under § 6 para 3 of the Consumer Protection Act (KSchG) since the exact nature of the cost increases that would justify a price increase is not clear. In other words, it is not clear whether these might be increases that the tour operator should foresee and passing these risks on to the consumer would therefore not be objectively justified under § 6 para 1 line 5 KSchG.
2. In accordance with § 31c para 1 KSchG, the tour operator is required, in the context of the price adjustment clause in question (which is to be formulated by both contractual parties together), to detail in the travel contract the exact calculation method used for setting the new price. He must provide more precise information than is stipulated in § 6 para 1 line 5 KSchG, according to which the circumstances that trigger a price rise must be clearly described in the contract, must be objectively justified and must not be determined according to the supplier’s will. The tour operator must therefore provide details of precisely how the adjustments listed exhaustively in § 31c para 1 KSchG would impact on the price. Simply reproducing the exact text of the law would not meet the legal requirement to detail the conditions that would trigger a price increase as laid down in § 31c para 1 KSchG.
3. It is not permissible to include a price adjustment clause if the criteria used in calculating the price increase (that the tour operator “is entitled to”) – meaning an abstract method of calculation – are not given. This method must also allow the consumer to exercise his right to demand a price reduction.
4. A tour operator is neither required, under § 6 para 1 of the Regulations for Operating a Travel Agency, nor permitted, on the grounds of (tacit) consent given by an interest group entitled to bring a class action or because it would be impossible to predict future changes in transport costs or exchange rates, to base his travel contracts on an unlawful price adjustment clause.
A tour operator based his travel contracts on the standard terms and conditions of travel (ARB) as established by the Austrian Association of Travel Agents. These terms and conditions included the following clause covering price adjustments: “The operator reserves the right to increase the trip price confirmed at the time of booking for reasons that are entirely independent of his own will, provided that the trip dates are more than two months after the contract is concluded. Such reasons are solely and exclusively a change in transport costs, such as fuel costs, a change in charges for specific services, such as landing charges, embarkation and disembarkation taxes at ports and airport taxes, or a change in the exchange rates for the relevant currency for the trip. If the price falls as a result of any of these factors, this price reduction will be passed onto the traveller. Within the two-month period, price increases may only be applied if the reasons for such an increase were individually negotiated when the booking was made and were noted on the booking slip. [...]. A price adjustment is nevertheless only permissible if all the agreed conditions have been met and the precise calculation method for setting the new price is detailed. Any changes to the price and the reasons for these must be communicated to the customer immediately.”
The Austrian Federal Chamber of Workers (Bundesarbeiterkammer), as an interest group entitled to bring a class action under § 29 KSchG, filed for an interim injunction order against the tour operator – to secure the actual injunction order they had applied for with the class action under § 28 para 1 KSchG – banning him from using, in his commercial dealings with consumers, the aforementioned clause or equivalent clauses, or from invoking such clauses where they had already been agreed. The Chamber argued that the clause was in breach of §§ 31c, 6 para 1 lines 5 and 6, para 3 KSchG as well as § 879 para 3 of the Austrian Civil Code (ABGB). The tour operator applied for the interim injunction order to be rejected. He argued that the ARB had been brought into line with §§ 31c ff KSchG und the Amendment to the Act on Guarantees, had been consulted on by the Consumer Policy Advisory Board to the Minister for Health, Sport and Consumer Protection and approved and passed by all parties and without reservations. The Federal Chamber of Workers had played an active part in the consultation procedure. Since the ARB had been negotiated upon with, and accepted by, the Chamber, it was not entitled to bring an action to challenge them. There was simply no need for legal protection. Furthermore, the Chamber had been aware of the ARB since 1993. As such, it had, at the very least, given tacit consent to the contents of the ARB, meaning that it was not justified in taking legal action against them. In fact, its right to apply for an injunction order had expired. Moreover, a tour operator was required, under § 6 para 1 of the Regulations for Operating a Travel Agency, to print the ARB in his travel brochures even if he did not intend to apply them. Thus, the Chamber’s application for an interim injunction order was in breach of the regulation cited. In addition, with regard to the clause being disputed, the ARB were equivalent in terms of content to § 31c KSchG and also in line, in terms of coverage, with the provisions in §§ 6 para 1 lines 5 and 6, para 3 KSchG and § 879 para 3 ABGB. Furthermore, it was not possible to foresee how travel costs or exchange rates may alter in future, meaning that it was de facto impossible and unreasonable to agree the precise calculation method for a new (increased) price when the brochure was being produced or at the time the booking was made. The tour operator could not be expected to make public the methods he used to calculate his prices. The aim of § 31c para 1 KSchG, ie to guard against the tour operator’s subsequently increasing his profit margins, could be achieved by scrutinising ex post the documentation relating to the price calculation.
The Court of First Instance issued an interim injunction order in relation to the first sentence of the disputed price adjustment clause, but rejected the rest of the application. The Court of Appeal, in contrast, upheld the application for an interim injunction order in its entirety.
The OGH concurred with the Court of Appeal’s ruling. In passing judgement, it referred in essence to the reasons given by the Court of Appeal, which it regarded as correct and which it essentially summarised and elaborated on as detailed in the headnotes.
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