OGH: Combined GTC provisions of a group insurer under review

18. Feb. 2022 Benn-Ibler Rechtsanwälte

Clauses in general terms and conditions (GTC) cannot be arbitrarily combined and considered in isolation if they regulate different things. The decisive factor is whether there is a materially independent scope of regulation. In some cases, however, a combination may be permissible.

In this case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with several clauses of the GTC of a group insurance company. The defendant operates the banking business and offers customers to join a group insurance against misuse of data in connection with online banking. In doing so, the consumer is informed in the GTC ("Sentences 1 - 5") about the scope, commencement and maximum amount of compensation per claim - these referred to by the plaintiff as "Clause 1". The plaintiff, the Association for Consumer Information (Verein für Konsumenteninformation, VKI), sought the omission of this "Clause 1", as it was grossly disadvantageous to the consumer due to the passing on of the risk of misuse pursuant to Section 879 para 3 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) and disregarded the mandatory liability provisions of Secs. 67 and 68 of the Payment Services Act (Zahlungsdienstegesetz, ZaDiG 2018).

The OGH agreed with the VKI. The special feature of the case in question is the wording of the claim: By wanting the provisions of sentences 1 - 5 to be assessed "in connection with each other", the plaintiff established an inseparable connection between them. “Clause 1" proves to be non-transparent, as the description of the insurance package suggests that the customer bears the risk of misuse.

The group insurer, the bank, would have been obliged to provide information about the liability provisions of the ZaDiG 2018. The average customer might get the impression that he is always and unlimitedly liable for slight negligence in case of misuse of his online banking data, whereas the ZaDiG 2018 only stipulates a very limited liability of the customer. Clause 1 also provides that the group insurer is liable up to a maximum of EUR 50,000, although the defendant would often have unlimited liability for reimbursement in the event of a claim under the ZaDiG 2018.

8 Ob 108/21x (22.10.2021)