OGH: Invalid Clauses in Fitness Studio Contracts

Dec 2, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has declared some clauses contained in the general terms and conditions of fitness studios to be invalid.

Cancelation period

‘The membership agreement can be terminated in writing by the member [...] with three months’ notice effective at the end of the month. For the first twelve months from the beginning of the contractual relationship, the member shall waive the right to submit a notice of termination (= minimum contract period). [...]’

According to the OGH, this clause is grossly disadvantageous and, moreover, intransparent because the (factual) 16-month notice period is unreasonably long without any high investments and personnel costs justifying this. The clause also only suggests a 12-month contractual commitment.

Service flat fees and access-chip fees

‘[1] At the beginning of the membership, a one-time flat fee of € 19.90 is charged for administration. [2] The access device (card or chip band) remains in the possession of the member. The fee is 19.90 €. [3] A service fee of €19.90 is charged semi-annually.’

A fixed administrative fee as mentioned in [1] is inadmissible if the work involved does not go beyond the normal work entailed in every contract and the consumer is not provided with any tangible counter-performance. The chip fee [2] is also grossly disadvantageous because allowing access to the gym is part of the owner’s contractual obligations, for which an additional fee is not reasonable. The costs are also disproportionate: Compared to a chip deposit system, where only ‘sloppy’ customers are charged, even conscientious customers have to bear the costs for an otherwise completely useless chip. The service charge [3] is also inadmissible if it is charged independently of the services available and actually used. Here, the consumer does not receive any services beyond the basic contractual services. A flat fee for no specific benefits or services is therefore not permissible.

OGH 4 Ob 59/22p (18 October 2022)