(1) According to the Court this clause is not confirming a fact, rather it is stipulating a specific behaviour of a consumer to be a declaration of intent. These clauses are effective if the entrepreneur grants the consumer an adequate period of time to render the declaration of intent and if the entrepreneur informs the consumer at the beginning of this period of time on the significance of his behaviour. These requirements were not met.
Thus the Court confirmed the decision of the appellate court that the clause is void, although the lower instances qualified the clause differently as a -void- confirmation of facts.
(2) According to the opinion of the Court it is possible that two different and independent provisions are contained in one clause or even in one sentence. For the qualification of a clause as a single/independent clause it is crucial if the provisions have an objective independent content. Regarding the clause in question this is the case (two different provisions in one clause) so that the clauses can be viewed separately.
The court decided part 1 of the clause to be admissible.
However, part 2 of the clause regarding the liability of the consumer is regarded void as it is of gross disadvantage for the consumer as defined under Article 3.1. and 4.2. Directive 93/13 (implemented into Austrian law by § 879 Sec 3 General Civil Law Act), as the consumer is also liable for any damage e.g. if the consumer notifies a theft of the card and the institute fails to block the card immediately.
(3) The reference within a contract or made to a price list does not automatically lead to a lack of transparency as defined under Article 5 Directive 93/13 (implemented into Austrian law by § 6 Sec 3 Consumer Protection Act). But in certain cases the consequence of the combination of the clauses in its entirety may be unclear and therefore the clause may be lacking transparency. According to the court will the referring clause be void if the clause referred to is deemed to be void.
The Court found various other clauses of the general terms and conditions in question to be void.