OGH: Ticket Agent Service Fee Is Legal

Jul 5, 2024 Benn-Ibler Rechtsanwälte

In the case at hand, the plaintiff, an organisation legally entitled to sue, challenged the following two clauses in the general terms and conditions of the defendant ticket agent. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) ruled on this as follows:

Clause 1: ‘Online orders are subject to a service and delivery charge which may vary according to the event. The service charge of a maximum of €2 is already included in the total purchase price displayed in the shopping basket; [...].’

Clause 2: ‘Prices shown include service charges of no more than €2.00.’

The plaintiff argued that the clauses were not transparent within the meaning of Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, hereinafter KSchG) and grossly unfair within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB). The consumer was supposedly left in the dark as to the actual amount of the service fee, as only a maximum amount was indicated. The defendant’s argument was then that the clauses were of a purely informative nature and did not have to include all fees in its general terms.

The OGH considered that the terms in question were indeed sufficiently transparent. When a consumer clicks through the ordering process, the specific amount of the service fee is displayed before an order is placed. The clauses are also not grossly unfair because the fee, in this case, is not an additional charge that limits, alters, or undermines the business’s promise of performance. Rather, a total price is agreed which already includes the service fee and which is explicitly displayed before the order is placed.

Consequently, the two clauses do not violate Section 6(3) of the KSchG nor Section 879(3) of the ABGB and are therefore permissible.

OGH 9 Ob 34/24a (24 April 2024)