Section 6(2)(4) of the Consumer Protection Act Is Constitutional

Aug 1, 2025 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has rejected as unfounded the application seeking annulment of Section 6(2)(4) of the Consumer Protection Act (Konsumentenschutzgesetz, hereinafter KSchG), which pertains to value guarantee clauses in rental agreements.

Landlords must refund overpaid rent

On 26 September 2024, the Leopoldstadt District Court determined that the applicant was liable for not refunding the tenant the excess rent paid due to a non-binding value guarantee clause.

The applicant contested the decision and submitted a request for a legal review. It was contended that Section 6(2)(4) of the KSchG imposes identical legal consequences on both fixed-term and continuing obligations, thereby failing to acknowledge their distinct characteristics. Additionally, it was argued that this provision constitutes an undue infringement of private autonomy and, consequently, violates the right to the inviolability of property.

The VfGh stated the following points:

Value guarantee clauses that do not comply with the law are considered invalid

To safeguard consumers against unforeseen price increases within the initial two months following the conclusion of a contract, Section 6 (2) (4) of the KSchG stipulates that any application of an abusive value guarantee clause results in its nullity. The OGH’s jurisprudence rejects a reductionist interpretation that would preserve the partial validity of unfair terms; therefore, such clauses are deemed entirely invalid if they contravene Section 6 (2) (4) KSchG. Unlawful value guarantee clauses are thus rendered wholly ineffective.

Section 6(2)(4) of the KSchG does not violate private autonomy

Section 6(2)(4) of the KSchG limits the private autonomy of parties entering into consumer contracts by introducing substantive requirements for the drafting of such agreements, as defined by the KSchG. Nonetheless, this provision does not infringe upon private autonomy, as it serves the legitimate purpose of protecting consumers—a public interest objective. Furthermore, the contested provision does not constitute a disproportionate restriction on the fundamental right to property integrity.

No breach of equality

Although target and continuing obligations are subject to various regulations, this does not imply that legislators are required to differentiate their treatment under all circumstances. The core interests of protection against unforeseen terms and the "fixed price guarantee" stipulated in Section 6(2)(4) KSchG apply equally to consumers, irrespective of whether contracts concern the supply of goods and services or continuing performance obligations. Accordingly, Section 6(2)(4) KSchG is consistent with the principle of equality.

VfGH G170/2024 ua (24 June 2025)