OGH: Different fixed prices and aliquoted annual costs

Jan 28, 2022 Benn-Ibler Rechtsanwälte

On "www.a1.at" consumers could buy a mobile phone tariff with a mobile phone. The mobile phone costs were shown as "one-time", the tariff costs as "monthly". In the line of the tariff costs, an annual service fee (Servicepauschale) was mentioned in small grey letters outside the actual cost field. If one clicked on "To checkout", a summary of the order was displayed. For the first time on the Checkout page, a "storage media fee" (“Speichermedienvergütung”) of EUR 3 was mentioned. The plaintiff is the Association for Consumer Information (Verein für Konsumenteninformation, VKI). The VKI demanded that A1 (an Austrian wireless network operator) list the storage media fee in the total costs and that, in addition to the monthly total costs charged with an aliquot service fee, the annual total costs must be shown.

The Supreme Court (Oberster Gerichtshof, OGH) followed the rulings of the lower courts and ruled that according to the interpretation of the European Court of Justice (ECJ) of Art 2 lit a of Directive 98/6/EC (Price Indication Directive), the final price communicated to the consumer, which he ultimately has to pay, must necessarily contain the unavoidable and foreseeable components of the price. Furthermore, the OGH refers to the Consumer Directive, which aims to provide the consumer with clear and transparent information of the total costs incurred. The debtor of the storage media fee is the entrepreneur and not the final consumer. If the entrepreneur charges the amount to the customer, it is part of the total price. Displaying individual price components is not sufficient.

With regard to the annual service fee, the entrepreneur is also subject to a so-called double disclosure obligation according to Section 4 of the Distance and Foreign Transactions Act (Fern- und Auswärtsgeschäftegesetz, FAGG): Not only must the total costs per billing period (monthly) be indicated, but also the total annual costs. In connection with the provisions on charges, it is stated that A1 cannot comply with the duty to inform by hiding the provisions on charges in the general terms and conditions. 

4 Ob 86/21g (28.09.2021)