HG Wien: Inadmissible terms and conditions of a fitness membership

Nov 17, 2021 Benn-Ibler Rechtsanwälte

In the case at hand, the Vienna Commercial Court (Handelsgericht Wien, HG Wien) dealt with a request for injunction filed by the Association for Consumer Information due to the inadmissibility of three clauses used in the General Terms and Conditions (Allgemeinen Geschäftsbedingungen, AGB) of the defendant. The defendant company operates fitness studios.

On the one hand, the one-time activation fee of EUR 19.90 was targeted, on the other hand, clauses on termination modalities - a waiver of termination in the first 12 months - and the clause according to which the customer is charged with the burden of proof regarding health circumstances that would prevent training in the fitness studios. The HG Wien found the three clauses to be inadmissible due to gross discrimination and ordered the defendant to no longer use or refer to them.

With regard to the clause on the activation fee, the HG Wien assumed a risk of repetition, as the declaration to cease and desist required under Section 28 para 2 of the Consumer Protection Act (Konsumentenschutzgesetzes, KSchG) had not been provided by the defendant and an amendment to the terms and conditions could not exclude a risk of repetition, especially as the clause had been amended literally but not in terms of content since 2018. The HG Wien also considers the activation fee not to be a claim connected with a proper consideration, which makes it null and void pursuant to Sec. 879 para 3 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

With regard to the particularly long cancellation period of 6 months with a preceding waiver of termination for 12 months, the HG Wien stated that the defendant did not offer any service that objectively justified this period of commitment. The clause is therefore not binding according to Sec. 6 para 1 no 1 KSchG.

Ultimately, a provision on the burden of proof in the form of a confirmation of facts, which is not formally implemented, constitutes an inadmissible shift of the burden of proof and is not binding pursuant to Sec. 6 para 1 no 11 of the KSchG, as it would release the entrepreneur from the burden of proving non-existent fault pursuant to Sec. 1298 of the ABGB.

HG Wien 57 Cg 36/20z (02.08.2021)