OGH requests preliminary ruling on terms in general terms and conditions

Nov 24, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) referred to the European Court of Justice (ECJ) the question of how clauses in general terms and conditions (GTC) may act with regard to Art 6 para 1 and Art 7 para 1 of Directive 93/13/EEC on unfair terms in consumer contracts (the Unfair Terms Directive).

In the case at hand, the OGH dealt with a contract for a fitted kitchen concluded between the plaintiff and the defendant. If the contractual partner unjustifiably withdraws from the contract, a generalized claim for damages for the plaintiff company - optionally compensation for the actual damage incurred - is stipulated. The defendant withdrew from the contract due to the fact that the defendant could not acquire the house intended for the fitted kitchen.

The OGH qualified the stipulation of the cancellation fee in the amount of 20% as grossly disadvantageous pursuant to Section 879 para 3 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) and thus unfair pursuant to Article 6 para 1 of the Directive. The OGH also stated that the replacement of the unfair term by dispositive law is only permissible if a deletion of the unfair term without replacement does not mean any disadvantages for the consumer. It is unclear whether the application of dispositive national law - in the case at hand, compensation for the damage actually incurred - is already excluded if the unfair term is only available as an option in GTC. Clarification by the ECJ is requested here because in earlier decisions the ECJ did not grant the “trader” a claim under dispositive national law. However, such an assessment would systematically contradict the purpose of civil law and its function of balancing interests. 

Furthermore, it is asked whether this should also apply if the contractor - as in the case at hand - does not even invoke the unfair term and whether the prohibition of reduction in accordance with the law, which is also advocated by the OGH - according to which an unfair term should be reduced to its still permissible content - also applies if the unfair term is only available as an option.

4 Ob 131/21z (22.09.2021)