• Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgement 8 Ob 37/20d
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 25/08/2020
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Injunction, B2C, consumer rights
  • Artikel der Richtlinie
    Injunctions Directive, Article 1, 2. Injunctions Directive, Article 2
  • Leitsatz


    A bank’s practice of applying in-house foreign exchange fixing to determine the conversion rates and charging premiums or discounts of 0.0066 per €1 when buying and selling foreign currencies, does not constitute an unlawful business practice within the meaning of § 28a KSchG.

  • Sachverhalt

    In the previous association proceeding (2015), the defendant bank was obliged to no longer use a clause concerning its foreign exchange fixing due to lack of transparency. Thereupon, the defendant sent a mass letter to its foreign currency borrowers, according to which, in its legal opinion, a certain conversion rate resulted from the dispositive law, and then actually carried out the conversion.

  • Rechtsfrage

    The issue was whether this was an unlawful business practice that could be invoked under § 28a KschG. (= In the event of a breach of certain consumer protection provisions, an action for an injunction is possible under this §)

  • Entscheidung

    According to the established case law of the Supreme Court, an unfair business practice, which is to be prohibited by means of an action for an injunction pursuant to § 28a KSchG, exists if consumers are induced to pay any amount stipulated in a clause of general terms and conditions that has been legally recognised as inadmissible pursuant to the KSchG. This case law presupposes that on objective assessment the applicable law must not support the result desired by the seller ("unsuitability of the legal basis"). Secondly, to fall under the KSchG’s prohibitions, the seller must actively represent the objectively unsuitable legal basis to consumers and thus give them the objectively false impression that his conduct complies with the legal provision. It was, therefore, necessary to clarify whether the dispositive conversion right indicated by the defendant as the legal basis for its conduct towards consumers constituted a "suitable legal basis" for the defendant's conduct. This was affirmed in the present case, which is why there was no unlawful business practice found against which action could be taken according to § 28a KSchG.

    Volltext: Volltext

  • Verbundene Rechtssachen

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  • Rechtsliteratur

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  • Ergebnis

    The Supreme Court thus completely contradicted the previous instance and dismissed the action. (The lower court was of the opinion that the conversion rates and charging premiums or discounts of 0.0066 per €1 when buying and selling foreign currencies constituted an unlawful business practice.)