OGH annuls several GTC clauses of an online broker

Mar 3, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has annulled numerous clauses of the General Terms and Conditions (GTC) of a Dutch online broker in an action brought by the Association for Consumer Information (Verein für Konsumenteninformation, VKI).

First, the OGH found that the interpretation of the GTC in question was based on the understanding of the "average Austrian" and not - as the defendant online broker claimed - on that of a typical average customer for the respective type of contract, i.e. a typical private securities investor. The OGH held that nowadays securities investments are by no means unusual, even for retail investors. In particular, the offer on the internet contributes to a broadening of the customer base, which is why it cannot be assumed that the average retail investor has a higher level of professional understanding than the average consumer.

The GTC also contained a clause according to which the broker "does not guarantee uninterrupted and error-free functioning of the webtrader and is entitled to temporarily restrict access to the webtrader or its functioning, e.g. in the event of technical malfunctions or maintenance work". In this regard, the OGH held that it was initially not clear whether "guarantee" meant only warranty claims or only an additional "obligation to assume responsibility" on the part of the defendant in the sense of a real guarantee. Apart from that, according to the wording of this clause, the defendant was also entitled to arbitrarily limit the functionality of the service. The exclusion of liability thus also covered damage for which the defendant was responsible. Such a far-reaching exclusion of liability proved to be grossly disadvantageous.

In addition, the GTC provide that communication with the customer is generally in English or Dutch and that in the event of a dispute, the English version of the customer contract and not the German translation is decisive. The OGH judged such a clause to be surprising and unusual because the customer does not expect a deviation from the contract language in case of dispute. In particular, the use of Dutch is not reasonable for the customer.

OGH 4 Ob 213/20g (22.12.2020)