The court decided that in this specific case the agreement on a contractual penalty within the general terms and conditions, if it applies when the contractual minimum period is already over, is a violation of Article 3.1. and 4.2. Directive 93/13 (implemented into Austrian law by § 879 Sec 3 General Civil Law Act) and therefore the clause is void.
Furthermore, the court had to decide if the use of inadmissible general terms and conditions (which constitutes a breach of law) may constitute an unfair practice as stated in Article 5 Directive 2005/29 (implemented into Austrian law by § 1 Sec 1 Cif 1 Unfair Competition Act) and entitle a competitor to a cease-and-desist order.
The court referred to the German doctrine and explained that the use of inadmissible general terms and conditions may be qualified as a violation of professional diligence in the sense of Article 5 of Directive 2005/29/EC, that, therefore, it is of competitive importance, and that it influences competition to the disadvantage of competitors significantly.