OGH on the presentation of standard information and the choice of representative example in consumer credit advertising (Sec. 5 (1) VKrG)

Jan 27, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (OGH) had to decide on a request for an injunction by the Association for Consumer Information (Verein für Konsumenteninformation, VKI) against a bank due to the manner of advertising for consumer loans.

In the present case, the defendant bank offers consumer loans via distance selling on its website. On the homepage there is a "loan calculator". By means of two sliders, the desired loan amount and the term can be determined. The programme then calculates a monthly instalment, which is displayed in bold, large and white letters on a dark grey background. Immediately below this, a footnote is printed in a much smaller font in a low-contrast colour (light grey font on a dark grey background).

The footnote contains the standard information (e.g. total amount of credit and annual percentage rate of charge) required under Sec. 5(1) of the Consumer Credit Act (Verbraucherkreditgesetz, VKrG). This information must be presented in a "clear, concise and striking" manner using a representative example. The bank chose a loan with a debit interest rate of 2.99% p.a. as an example.

It was disputed whether the placement in the footnote and the choice of figures for the example complied with the legal requirements.

According to the OGH, it is not excluded from the outset that the standard information can be given in small print, provided that it is placed clearly, concisely and conspicuously. However, this is not the case if the figures that are particularly advantageous for the customer (such as the monthly instalment in this case) are presented in bold type in the standard text in an eye-catching manner, but the other information in the footnote is presented in a much smaller, non-bold and low-contrast font.

The calculation example chosen was also unsuitable. According to the OGH, the figures must be chosen in such a way that a consumer can assume typical conditions for the advertised loan. An example whose conditions only apply in the most favourable case is not suitable as a representative example.

OGH 9 Ob 57/20b (25.11.2020)