Austrian Supreme Court: More Gym Membership GTCs Quashed

Feb 24, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) once again ruled on the validity of clauses in the General Terms and Conditions (GTC) of fitness studios. The Austrian Association for Consumer Information (Verein für Konsumenteninformation, VKI) had objected to several GTC items of a Viennese fitness studio chain.

Activation fee

‘A one-time activation fee of EUR 19.90 is due upon the first visit to the gym.’

The Austrian Supreme Court considered this clause to be null and void with reference to a similar decision (4 Ob 59/22p).

Termination period

‘Termination is possible for the first time after 12 months, and notice of termination is required no later than one month prior to that (“notice period”). Thereafter, I can terminate the contract every 6 months, also subject to a one-month notice period.’

According to the OGH, this clause is also non-transparent and therefore null and void, because the most anti-customer interpretation possible would result in a minimum contract period of 18 months.

Health confirmation

‘I hereby declare that I am currently not aware of any circumstances affecting my physical state of health that would prevent me from exercising (or using the sunbeds).’

According to Section 6(1)(11) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, hereinafter KSchG), contractual provisions are not binding on the consumer if they impose a burden of proof on the consumers not imposed on them by law.

So-called confirmations of fact relating to health are a different matter. They provide for a rebuttable statement by the consumer about the existence or non-existence of a fact. Confirmations of fact are then void according to Section 6(1)(11) KSchG (analogous) if no formal agreement on the burden of proof is made, but the consumer makes a declaration of knowledge which, at least in its result, may approximate the effects of a corresponding agreement. This applies if the consumers’ ability to enforce their rights is impeded by burdening them with evidence that they would otherwise not be required to provide.

According to the OGH, the contested health confirmation is such an invalid confirmation of facts.

At the very least, such a clause is likely to make it more difficult for a consumer to provide evidence, because although in the case of an objective breach of the duty of care as alleged by the customer, the gym bears the burden of proving that it is not at fault; however, the confirmation provided by the customer may improve the gym's evidence and thus worsen the customer's position.

Austrian Supreme Court 6 Ob 44/22x (09.12.2022)