Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, ANNEX I, 1.

1.A clause in STCs containing the following provisions is in breach of the transparency requirement laid down in § 6 para 3 KSchG because it does not refer to the option of subsequently reneging on the agreement to transfer data. Such a clause is one in which the customer consents to the transfer of his name, address, date of birth, value of liability, retracing methods, details of any steps taken by the bank with regard to amortisation and legal proceedings, as well as details of any misuse by the customer of payment transaction instruments, to the personal loan register and the credit blacklist as well as to other credit providers (particularly the Österreichische Nationalbank, Österreichische Kontrollbank AG, European Central Bank, European Investment Bank). In such a clause, the customer is thus also explicitly absolving the bank of any responsibility for customer confidentiality.
2.The following clause in STCs contravenes § 879 para 3 ABGB and is therefore not permissible: “The bank is only liable for carefully selecting a third party as custodian”.
3.The following clause in STCs contravenes 879 para 3 ABGB and is therefore not permissible: “The bank is entitled to carry out, on the customer’s account, any requests made to it during business contact with the customer, if it quite reasonably took the view that the request stemmed from the customer and if the bank cannot not be held responsible for an invalid request”.
4.The following clause in STCs is in breach of the transparency requirement under § 6 para 3 KSchG and is thus not permissible: “Where all other prerequisites have been met, the bank is only under any obligation to carry out the requests (made by telephone) when the customer puts this request in writing to the bank and the bank formally agrees to the request”.
5.The following clause in STCs contravenes § 879 para 3 ABGB and § 6 para 1 line 9 KSchG and is therefore not permissible: “The bank is not liable for damage caused by minor negligence”.
6.The following clause in STCs is permissible: “The bank has compelling grounds to withdraw from a contract when the customer’s (or his co-debtor’s) financial situation has deteriorated such that his ability to meet his liabilities with the bank is in jeopardy”.
7.The following clause in STCs is permissible: “The bank has compelling grounds for withdrawing from the contract when the customer has provided incorrect information about his financial situation or other essential circumstances”.
8.The following clause in STCs is permissible: “In any transactions with the bank, the customer is obliged to fulfil his duties of cooperation as detailed below. Failing to perform these duties renders the customer liable for compensation and also reduces the customer’s compensation claims against the bank”.
9.The following clause in STCs is in breach of § 879 para 3 ABGB and is thus not permissible: “Any partner of the bank is authorised to cancel the account contract on the bank’s behalf”.
10.The following clause in STCs is in breach of § 879 para 3 ABGB and § 6 para 3 KSchG (transparency requirement) and is thus not permissible: “In the absence of any other agreement, the bank closes its accounts on an annual basis. Should an account be in debit during one quarter, the bank closes the account at the end of that quarter in the absence of any other agreement”.
11.The following clause in STCs contravenes § 879 para 3 ABGB and is thus not permissible: “A transfer request, which is made by the customer via electronic data processing or using any other technical aid and which is be dealt with in the same way by the bank, will only be carried out by the bank if the relevant bank code and account number of the recipient are provided”.
12.The following clause in STCs is permissible: “Should the bank be unable to carry out a customer’s payment instruction due to a lack of available funds or be forced by a third party to take action against the customer, it is entitled to make a one-off charge to cover its expenses in line with its advertised rates”.
13.“The lien on joint accounts and joint security deposits also secures any claims made by the bank against just one accountholder or deposit holder”. The above clause is in breach of § 879 para 3 ABGB and the transparency requirement laid down in § 6 para 3 KSchG and is therefore not permissible. The same applies to any provision that allows joint accounts or joint security deposits to be frozen in order to secure any claims by the bank.
14.“The bank is entitled to offset all claims by the customer (provided they are covered by a lien) and all the customer’s liabilities against any assets in joint accounts and any claims by the bank against one of the accountholders.” Because this clause in STCs provides for assets in a joint account to be offset against liabilities in an individual bank account of just one accountholder, it is in breach of § 879 para 3 ABGB and the transparency requirement laid down in § 6 para 3 KSchG and is thus not permissible.
15.The following clause in STCs is permissible: “The bank is entitled to carry out any security transactions on condition that it is not evident that the customer only wishes the transaction to be carried out provided that sufficient funds are available”.

The trial followed the Austrian Consumers’ Association’s class action against Bank Austria Creditanstalt AG, which had based its STCs on the “Standard Terms and Conditions for Banks 2000” (ABB 2000). The OGH had to scrutinise 17 clauses and ruled that 12 of these were illegal or in breach of good moral practice.

In view of the very broad scope of the ruling, please refer to the aforementioned decisions in respect of the individual clauses.

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