OGH: Review of Bank General Terms and Conditions

Dec 9, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) considered a ‘fictitious consent’ clause of a bank's General Terms and Conditions (GTC).

In a class action suit brought by the Austrian Consumers’ Association against a bank, the lawfulness of a request for injunctive relief and publication of judgement was reviewed with regard to nine of 54 clauses in the bank’s GTC and credit card terms.

The clauses in question would allow the bank to make a number of subsequent changes to contract terms concerning fees, services, interest rates, as well as general terms and conditions. The court of appeal considered such changes to be in violation of the transparency requirement under Section 6 (3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG), but also in violation of the Payment Services Act (Zahlungsdienstegesetz, ZaDiG 2018).

The Austrian Supreme Court confirmed the decision of the court of appeal, stating that for the lawfulness of a ‘fictitious consent’ clause, in addition to the existence of formal requirements, it is also necessary to adapt the clause according to Section 6(3) of the Consumer Protection Act and Section 879(3) as well as the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The fact that the bank had limited its possibility of changing fees and services to ‘objectively justifiable cases’ is not sufficient to meet the requirement of case law regarding the requirement of transparency.

OGH 9 Ob 81/21h (14 July 2022)