OGH: Unlawful Concert Organiser GTCs

Oct 20, 2023 Benn-Ibler Rechtsanwälte

In the event of the cancellation of an event due to force majeure, the organiser shall be liable for the refund of the ticket price. Issuing vouchers is only allowed in the event of force majeure. In addition, it is not reasonable to expect consumers to agree to a change in date up to 18 months in advance.

 The defendant is a company active throughout Austria which organises and carries out concerts, events, and festivals. The company was sued by the Austrian Association for Consumer Information (Verein für Konsumenteninformation, VKI) for having used unlawful general terms and conditions.

Among other things, the OGH found the following clauses to be unlawful:

`Instead of being refunded, the customer will receive a voucher corresponding to the amount to be refunded.’

If an event is cancelled due to the Covid 19 pandemic, the Austrian Arts, Culture, and Sports Security Act (KuKuSpoSiG) allows organisers to provide a refund in the form of a voucher up to a certain amount. However, this is an exceptional case and cannot be contractually extended to other cases of force majeure.

‘Date changes due to the Covid 19 pandemic (or other cases of force majeure) will in any case be considered reasonable, minor, and objectively justified if the new event date is not more than 18 months after the original event date.’

A contractual clause which allows the business to unilaterally alter or deviate from a service to be provided by the business is only acceptable if the deviation is reasonable for the consumer. A deviation is reasonable if it is minor and objectively justified. However, it cannot be expected of consumers to have time on their hands on any given date for the next 18 months.

‘If the event ticket price is refunded, no processing fees can be refunded as the services concerned have already been provided as part of the contractual fulfilment.’

If the clause were to be interpreted in the most anti-customer way, a refund of the fees paid would be excluded, even if the event was cancelled due to the fault of the defendant. The OGH ruled that this clause is unlawful because it is unfair under Section 879 (3) of the Austrian Code of Civil Procedure (ABGB).

9 Ob 23/23g (26 July 2023)