OGH: Entrepreneurs Lose Right to Rely on Unlawful GTCs
In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) examined the European Court of Justice’s (ECJ) interpretation of the EEC Directive on Unfair Terms in Consumer Contracts.
The case concerned an unjustified rescission of the contract by the defendant consumer after he had concluded a contract for the sale of a fitted kitchen with the plaintiff trader. According to the plaintiff’s general terms and conditions, in the event of an unjustified withdrawal by the customer, the plaintiff is entitled to a flat-rate compensation of 20% of the total invoice amount or the actual damage suffered. In the present case, the contractor claimed the purchase price from the defendant, less the amount the contractor saved by failing to perform the work. In doing so, the contractor based their claim on general civil law and not on the general terms and conditions.
In its reply to the OGH’s request for a preliminary ruling, the ECJ held that the contractor is not entitled to damages in the event of the invalidity of a contractual clause if the contract could have been continued even in the absence of a specific clause. This also applies if the contractor did not rely on the clause but on general civil law.
Accordingly, the OGH dismissed the contractor's claim for damages. According to the OGH's case law, a clause in the general terms and conditions providing for a flat cancellation fee of 20% of the purchase price in case of unfounded withdrawal is grossly unfair to the consumer due to the unreasonable amount of the cancellation fee and is therefore void.
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