OGH: Transparency requirement of § 6 (3) KSchG for foreign currency loans
The transparency requirement of Section 6 para 3 Consumer Protection Act (Konsumentenschutzgesetz, KSchG) was the undoing of the defendant bank with regard to a loan agreement. After a comprehensive interpretation of the contract documents, the Supreme Court (Oberster Gerichtshof, OGH) ruled that a foreign currency clause was non-transparent and therefore invalid.
In the loan agreement, the bank agrees to grant the borrower "a loan that can be utilised once in euros and foreign currency" up to a certain equivalent value in EUR in the currency Swiss francs.
There are two options available to the borrower. Either the credit is drawn with the "utilisable currency" in the form of Swiss francs or it is disbursed at a certain equivalent value in euros. If the latter is chosen, the foreign currency should at least be the settlement currency.
If the wording of the contract is clear to the borrower, so that it is clear that he is taking out a foreign currency loan in Swiss francs and having it paid out in EUR, this remains a foreign currency loan, since the basis of the repayment obligation continues to be the foreign currency. In addition, a (fee-based) "money exchange contract" is concluded for the "exchange" of foreign currency into EUR (foreign exchange sale).
In the present contract, however, it is - according to the OGH - inconclusive what the "utilised" currency should be if the borrower has the amount paid out in EUR. According to the wording of the contract forms, a "one-time usable credit in Swiss francs that can be utilised in euros and foreign currency" is provided. The credit agreement does not contain any provision comprehensible to the average consumer that the "utilised" currency is the Swiss franc. Nor can it be deduced from the contract papers that a money exchange contract is also to be concluded.
The fact that the consumer "utilises" the credit amount in foreign currency, although he wants to receive and does receive EUR, is not comprehensible to him and thus non-transparent. This clause hides the borrower's currency risk in the case of "EUR utilisation", since the possibility of utilisation in "EUR and foreign currency" can also be interpreted in such a way that an ordinary EUR loan (with a higher interest burden) is proposed to him as a substitute.
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