OGH - 6Ob48/21h

OGH - 6Ob48/21h
Court:	OGH (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 80 GDPR § 28a KSchG § 29 KSchG
Decided:	06.08.2021
Published:	22.09.2021
Parties:	Verein für Konsumenten Information (VKI)
National Case Number/Name:	6Ob48/21h
European Case Law Identifier:	ECLI:AT:OGH0002:2021:0060OB00048.21H.0806.000
Appeal from:
Appeal to:	Pending appeal
Original Language(s):	German
Original Source:	RIS (in German)
Initial Contributor:	n/a

The Austrian Supreme Court decided to put a case on hold until the CJEU determined whether the GDPR precludes national legislation that grants consumer organisations the legitimacy to take legal action without a mandate and a violation of the rights of a particular individual.

English Summary

Facts

The plaintiff (the Austrian association Verein für Konsumenten Information) sued the defendant (an online shopping platform operating throughout Austria) over several business practices, terms and conditions they found in violation with consumer protection law and the GDPR. More precisely, the association criticized several non-transparent contractual clauses on interests and creditworthiness checks as well as the defendant making decisions based on classifications by external credit scoring agencies in violation of Article 22 GDPR.

The defendant argued that the association had no right to take legal action under applicable data protection law. In this regard, the appealing court already decided that the association lacks the legitimacy to assert data protection violations.

Holding

The OGH decided that the previous court failed to take into account that the systematic infringement of Article 22 GDPR in connection with consumer credit ratings could in fact allow the association to take legal action under the GDPR. The court decided that the appeal is admissible because the legitimacy of the plaintiffs associations under §§ 28 and 29 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG) is not ultimately clarified. The court refers to a parallel case of the plaintiff currently pending at the CJEU as part of an preliminary ruling procedure.

In this regard, the CJEU has to decide on whether the GDPR precludes national rules from granting associations the power to take legal action against unfair business practices or violations of consumer protection laws without a mandate and irrespective of the violation of specific rights of individual data subjects (see here). Until this decision is delivered by the CJEU the present procedure is put on hold.

Comment

For further information on the corresponding preliminary reference see here.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

court
Supreme Court


Decision date
08/06/2021


Business number
6Ob48 / 21h


head
The Supreme Court, as a court of appeal by the Senate President Hon.-Prof. Dr. Gitschthaler as chairman, the court councilors Univ.-Prof. Dr. Kodek and Dr. Nowotny, the court councilor Dr. Faber and Hofrat Mag. Pertmayr as further judges in the case of the plaintiff, Verein für Konsumenteninformation, 1060 Vienna, Linke Wienzeile 18, represented by Kosesnik-Wehrle & Langer Rechtsanwälte KG in Vienna, against the defendant U ***** GmbH , *****, represented by Pressl Endl Heinrich Bamberger Rechtsanwälte GmbH in Salzburg, for omission and publication of the judgment, on the appeals by both parties against the judgment of the Linz Higher Regional Court as the court of appeal of November 26, 2020, GZ 3 R 128 / 20v-15 , with which the judgment of the Salzburg Regional Court of August 14, 2020, GZ 4 Cg 67 / 19w-9, was partially amended, rightly recognized in a closed session and decided:


Saying

The appeal of the defendant, insofar as it is against the cease-and-desist clause 1.1. of the appeal judgment (Clause 1), not given.
Insofar as it is directed against the omission requirement item 2 of the appeal judgment (business practice 1), the appeal of the defendant will be followed and the dismissing decision of the first court (there item 3.1. Of the judgment) will be restored.
With regard to point 4 of the judgment of the appellate court, the proceedings will be interrupted until the decision of the European Court of Justice on the request for a preliminary ruling made by the Supreme Court on November 25, 2020 re 6 Ob 77 / 20x. Once the preliminary ruling has been received, the proceedings will be continued ex officio.
The decision on the request of the plaintiff to authorize it to publish the plaintiff's verdict, as well as the request of the defendant to authorize it to publish the dismissing verdict, are reserved for the final decision.
The decision on the costs of the appeal proceedings is reserved for the final decision.


text
Reasons for the decision:
 [1] The plaintiff is an association entitled to sue within the meaning of § 29 KSchG.
 [2] The defendant is a mail order company operating throughout Austria, which continuously concludes contracts with consumers. It bases its contracts on general terms and conditions, which include the following clauses:
"9. Payment:
What payment options do you have for your order?
9.1. Purchase on invoice:
In the case of purchase on account (payment by bank transfer), the invoice amount is due within 14 days of receipt of the goods.
9.2. Partial payment:
With us, you have the option of making partial payments if you have the appropriate creditworthiness and an order value of up to EUR 4,000.00. You can find more information, in particular about the amount and number of installments, at www.u *****. At / part-payment.
In the case of an advance payment, the amount of the agreed installments is reduced and the total burden is lower. The balance remaining after the advance payment can be paid in partial amounts. For the 1st month after purchase, no installment costs are charged. From the 2nd month onwards, the partial payment costs are offset against the current account and amount to 1.65% per month (19.8% p.a.) of the outstanding balance. With current account settlement, this results in an effective interest rate of 21.7% p.a. By sending you an account statement by post or email, we will inform you about your current account balance on a monthly basis. You are deemed to have approved the account balance if you do not object to it within two months of receipt.
9.3. Credit card:
You can pay with us online by credit card. Simply select credit card under payment method. We accept Mastercard, Visa, Diners Club and Discover (no prepaid credit cards). In addition to the credit card company, the card number and the period of validity, we need the check digit of your credit card. The check digit is a three-digit number on the back of your credit card that ensures payment security on the Internet.
9.4. Advance payment:
We reserve the right to make the delivery of the goods dependent on an advance payment.
9.5. PayPal:
[...] "
 [3] Via the link “www.u *****. At / part-payment” you get to an installment calculator. There, the customer can enter the term of the installment payments within a specified range. The maximum term is 48 months, the minimum monthly rate is EUR 10. When you enter the item price and the desired term, the system calculates the installment surcharge, the monthly minimum installment, the amount of the last installment, the final installment price and indicates the effective annual interest rate.
 [4] The information on the credit check can be found in the data protection information of the defendant (www.u *****. At / datenschutz), which has the following content in excerpts:
"3.2.2.2. Credit checks:
If you have selected a so-called insecure payment method (purchase on account or installment purchase) when placing an order, the following applies:
U ***** and other mail order companies of the O ***** - Group basically give their customers the opportunity to purchase goods using unsafe payment methods (e.g. purchase on account, purchase on finance).
[...]
Companies that generally allow their customers to use unsafe payment methods have a legitimate interest in protecting themselves as well as possible from the occurrence of payment defaults. This is done, among other things, by checking the creditworthiness of the customer before granting the option of using insecure payment methods. As part of this check, we are entitled to ask U ***** GmbH whether they have received negative credit information about the respective customers from the other mail-order companies of the O ***** Group. Furthermore, we are entitled to transmit negative creditworthiness information on the respective customers to U ***** GmbH, which in turn can provide information to the above-mentioned other mail-order companies of the O ***** Group before these other mail-order companies give the customer the option of using unsafe payment methods.
The creditworthiness information is information about outstanding payment claims and information from which there is a direct risk of payment default (e.g. insolvency, debt counseling, deferral due to insolvency). Before we transmit negative information about outstanding payment claims to U ***** GmbH, the customers concerned are informed of the possibility of transmission on a reminder. We are also entitled to transmit information about extremely atypical order processes (e.g. simultaneous ordering of a large number of goods to the same address using different customer accounts) to U ***** GmbH and to request such information from U ***** GmbH. This is to avoid payment defaults and to protect our customers from misuse of their accounts or their identity.
In cases in which a customer wants to order with an insecure method of payment, we are entitled to use information received as part of the order to calculate a probability of default (internal scoring). The calculation of the failure probability by means of the internal scoring is based on a recognized mathematical statistical procedure. The data used as part of the internal scoring result in particular from a combination of the following data categories (not exhaustive): address data, age, desired payment conditions, order method and product range groups. As part of the internal scoring, only data that the customer has given us is used. On the basis of the named data categories, conclusions can be drawn about the probability of default on payment due to the mathematical statistical procedure used. For example, a certain place of residence of the person placing the order, combined with a certain category of goods, can lead to an increased probability of default and thus a restriction on the payment method. There is no payment type restriction based solely on the place of residence of the person placing the order. In addition, it has been statistically proven, for example, that there is a lower risk of payment default when using a chargeable e-mail provider than is the case when using a free provider. As part of the examination of whether an unsafe method of payment (installment / purchase on account) can be granted, we are also entitled to obtain credit information about you from an external credit agency. We work with the following credit agency C ***** GmbH, *****.
For the purpose of calling up creditworthiness information, the following data is transmitted to the external credit agency: first name, last name, postal address, date of birth and, in the event of default in payment, the outstanding balance. The data mentioned can also be transmitted to C ***** GmbH, ***** for the purpose of personal and address validation and for fraud prevention (see also the following point).
As part of the credit check, we can use an automated process to decide whether you will be given the desired unsecure payment method (installment / purchase on account). For example, when a negative credit report is sent by a credit agency or when an insufficient score is calculated as part of the internal scoring, the desired payment method can be automatically rejected. You can assert the right to us to manually review the automated decision. In addition, you have the right to express your own point of view and the right to contest the decision.
The processing of your data as part of the credit check is based on Article 6 Paragraph 1b GDPR and Article 6 Paragraph 1f GDPR. We basically have a legitimate interest in carrying out a credit check when you select an unsafe payment method (installment / purchase on account). "
 [5] Under the heading “Data protection notice” and the text “Information on payment method restrictions: You would like to know why you cannot use all payment methods with us? We will be happy to provide you with information here. ", The customer arrives at a link with the title" Request information ".
 [6] Over 90% of the orders placed with the defendant are made online, the remaining 10% by telephone. The average order value is EUR 650.
 [7] In the case of an online order, the payment method "purchase on account" is preset. If a customer wants partial payment, he has to change the payment option himself.
 [8] In the case of an initial order, the defendant limits the order value to EUR 500 in the case of an installment purchase or purchase on account; this limit is gradually increased for subsequent orders if there have been no defaults in payment.
 [9] In the case of a new customer who orders on open account or partial payment, an inquiry is automatically made to the credit agency with the data provided by the customer. If the customer is unknown there, the defendant rejects a business relationship with partial payment or on account and notifies the customer that he would be supplied via credit card or PayPal. If the customer is known, there are three ways of scoring with three different colors. If the color is red, the unsecure payment method is also rejected, if it is yellow, an employee of the defendant checks, and if it is green, the order is accepted. In the case of a yellow scoring, the employee himself inspects the database and decides whether and, if so, under what conditions the order will be released.
 [10] If a customer makes use of the option of requesting information, further information is obtained, for example the request for proof of income.
 [11] The plaintiff association desires - insofar as it is still the subject of the appeal proceedings - to oblige the defendant to refrain from using the following clauses in general terms and conditions or contract forms in business dealings with consumers:
(Clause 1 = point 1.1. Of the judgment of the court of appeal): "From the second month onwards, the partial payment costs are offset against the current account and amount to 1.65% per month (19.8% p.a.) of the outstanding balance. With current account offsetting, this results in an effective interest rate of 21.7% p.a. "
 [12] Furthermore, he seeks to oblige the defendant in accordance with § 28a KSchG to refrain from doing business with consumers in connection with consumer credit relationships,
(Business practice 1 = point 2. of the judgment of the court of appeal): "To agree on partial payment purchases and / or partial payment options with a total credit of at least EUR 200 to pay consumers for goods purchased without checking the creditworthiness of the consumer on the basis of sufficient information, in particular without To obtain information on the income situation and / or financial situation of these consumers; ”as well as
(Business practice 2 = point 4 of the judgment of the appellate court): "to carry out the credit check when lending on the basis of a scoring, without granting the consumer the right to express his own point of view and to contest his classification."
 [13] Furthermore, the plaintiff association applied for authorization to publish the judgment.
 [14] The defendant requested that the action be dismissed as well as authorization to publish the judgment dismissing the complaint, and, in the event that the action was upheld, the setting of a performance period of at least six months.
 [15] The first court granted the cease and desist and publication requests with regard to clauses 1 and 2 without setting a performance deadline and dismissed the further claim and the counter-publication request of the defendant.
 [16] The appeals court partially followed the appeals of both parties. It confirmed the admission of the action with regard to clauses 1 and 2, whereby it set a six-month performance period, and changed the judgment of the first court with regard to business practice 1 in the plaintiff's sense, also with a six-month performance period.
 [17] It allowed the appeal because it was partly about clauses or business practices that had not yet been assessed by the Supreme Court and that were important for a larger number of consumers.
 [18] In their opposing revisions, the parties in dispute request the amendment of the decision of the appellate court in the sense of a complete lodging of the complaint or a dismissal of the complaint, whereby the defendant does not contest the approval of the complaint with regard to the omission of clause 2 (point 1.2. Of the appeal judgment). In the alternative, the defendant files an application for annulment.
 [19] The plaintiff requests that the defendant's appeal be dismissed or, in the alternative, that it should not be followed. The defendant requests that the plaintiff's appeal be disregarded.
 [20] The revisions of both parties are permissible. The defendant's revision is partly justified.
 [21] The submissions of the parties as well as the reasons for the decision of the lower courts are presented when dealing with the disputed clause and the disputed business practices.


Legal assessment
 [22] A. On the defendant's appeal:
 [23] The defendant's revision is permissible because the requirements for the credit check in accordance with Section 7 (1) VKrG require clarification. It is partially justified.
 [24] Regarding clause 1: "From the second month, the partial payment costs are offset against the current account and amount to 1.65% per month (19.8% p.a.) of the outstanding balance. With current account offsetting, this results in an effective interest rate of 21.7% p.a. "
 [25] The plaintiff complains that the clause is not transparent because it is not pointed out that the defendant derives the right to charge compound interest during the year from the monthly capitalization. The clause is also grossly disadvantageous within the meaning of Section 879 Paragraph 3 ABGB, because the accounting period is shortened to one month in deviation from Section 355 Paragraph 2 UGB. The amount of the effective interest rate is grossly disadvantageous and violates § 934 ABGB. In addition, it is not evident that the effective interest rate results from the compound interest effect.
 [26] The defendant denies the claims. There was no lack of transparency because the effective annual interest rate was stated and it was clearly recognizable that the difference to the annual interest rate could only result from the compound interest effect (and not from the inclusion of processing fees or the like).
 [27] The lower courts forbade the clause because it violated the transparency requirement of Section 6 (3) KSchG. The creditor of a monetary claim can only demand compound interest according to Section 1000 (2) sentence 1 ABGB if the parties have expressly agreed to this. According to the case law, the agreement of the capitalization of interest during the year is not transparent if the user of the terms and conditions does not point out the resulting compound interest effect. The lack of transparency is also not eliminated by listing the monthly interest rate, the annual interest rate and the effective annual interest rate or by using the rate calculator, because the annual interest rate can also result from other cost factors such as commissions, costs of contract establishment, processing fees, etc., so that the average consumer can choose the difference between the annual interest rate and the effective annual interest rate does not have to infer the agreement of compound interest.
 [28] The revision is not justified.
 [29] 1.1. According to Section 1000 (2) sentence 1 ABGB, compound interest is due - as the appellate court has already correctly pointed out - only in the case of an "express" agreement between the parties. It is necessary that the compound interest is conditional, for which sufficiently clear conclusive explanations are sufficient (Perner in Schwimann / Kodek, ABGB4 § 1000 Rz 17 and Fn 50; Ertl in Fenyves / Kerschner / Vonkilch, Klang³ § 1000 ABGB Rz 15; Dullinger in Artmann , UGB³ § 355 margin no. 3). The agreement of compound interest in the General Terms and Conditions of the defendant must also meet the requirements of Section 6 (3) KSchG.
 [30] 1.2. According to the established case law of the Supreme Court, the reference to an account closing during the year or the reference to the fact that interest is "calculated, capitalized and charged" during the year is not sufficient to make the consumer realize that compound interest should also be charged. Such clauses were therefore regularly judged to be non-transparent within the meaning of Section 6 (3) KSchG (1 Ob 124 / 18v [Clause 17]; 9 Ob 11 / 18k [Clause 6]; 8 Ob 128 / 17g [Clauses 7 and 8]; 10 Ob 31 / 16f [Clause c]; 4 Ob 179 / 02f [Clause Z 38 Paragraph 1]; see RS0117273).
 [31] 1.3. The present clause does not expressly provide for an account closing during the year, but rather the "current account settlement" of the partial payment costs, which are specified as 1.65% per month (19.8% p.a.) of the outstanding balance; The effective interest rate of 21.7% p.a. resulting from "current account settlement" is also given.
 [32] 2.1. The current account agreement is regulated in Section 355 of the UGB. Section 355 (1) of the Austrian Commercial Code defines the current account agreement as an agreement with an entrepreneur with whom someone has a business relationship, that the mutual claims and services arising from the connection, plus interest, are invoiced and at regular intervals by offsetting and determining the amount for one or the other the other part of the resulting surplus will be compensated. According to Section 355, Paragraph 4, Clause 4 of the Austrian Commercial Code, anyone who is entitled to a surplus when closing the accounts can demand compound interest.
 [33] 2.2. If one or more features of the current account defined by law in Section 355 (1) UGB are missing, such as the entrepreneurial status of a part or the permanent business relationship, one speaks of an improper current account agreement to which the current account law can apply analogously (1 Ob 83 / 01i). For example, the analogous application of § 355 UGB was affirmed for the case of an agreement between non-entrepreneurs (1 Ob 83 / 01i; W. Schuhmacher in Straube / Ratka / Rauter, UGB I / 34 § 355 Rz 4).
 [34] 2.3. On the basis of the regulation of § 1000 Paragraph 2 Sentence 1 ABGB, it is assumed when an improper current account relationship is agreed that compound interest is only due if expressly agreed (within the meaning of § 1000 Paragraph 2 Sentence 1 ABGB) (cf. 1 Ob 83 / 01i; W. Schuhmacher in Straube / Ratka / Rauter, UGB I / 34 § 355 Rz 4; aM Dullinger in Artmann, UGB³ § 355 Rz 3).
 [35] 2.4. The current account must be based on a business relationship established for a certain period of time, which means that the repeated conclusion of transactions can be expected (Dullinger in Artmann, UGB³ § 355 Rz 4; W. Schuhmacher in Straube / Ratka / Rauter, UGB I / 34 § 355 Rz 5) . Whether a single purchase in installments can already meet this requirement (critical for assessing an installment credit as a current account relationship Dullinger in Artmann, UGB³ § 355 Rz 4) or whether the (qualified) business relationship required by § 355 (1) UGB is missing when concluding a single purchase in installments, so that there is at most an "improper" current account relationship does not have to be conclusively assessed in the present case:
 [36] 3.1. Because even under the assumption that the agreement of a "current account settlement" in the case of a hire purchase would already be directly subject to § 355 UGB, this would not change the fact that the clause to be assessed here is not clear and understandable for the consumer regarding the accrual of compound interest within the meaning of § 6 Paragraph 3 of the KSchG. For the economically inexperienced average customer of a mail order company, neither the use of the term "current account" nor the indication of the different interest rates results in the fact that a periodic determination of the outstanding invoice amount including capitalization of the "partial payment costs" and their (renewed) Interest takes place. This does not result from the difference between the annual interest rate and the effective annual interest rate disclosed in the clause. The appellate court has already correctly stated that such a difference can also have reasons other than the offsetting of compound interest (Section 510 (3) ZPO). In addition, the duration of the billing period of one month can only be deduced from the specification of a monthly interest rate for the installment costs. The fact that with the regulation of the "current account settlement" in truth only the monthly settlement of compound interest is to be effected is therefore not generally recognizable for the average consumer. Insofar as the revision argues that the effective annual interest rate can only exceed the stated annual interest rate because of the compound interest effect, because no other costs would flow into it, this circumstance is not immediately apparent to the consumer from the disputed clause.
 [37] 3.2. If it is further argued in the revision that the financial burden is easily recognizable for the consumer through the indication of the effective annual interest rate and through the instrument of the rate calculator, nothing can be gained from this for the defendant. If the effective agreement of compound interest is missing - due to a violation of the transparency requirement of § 6 Abs 3 KSchG - the defendant is not entitled to the specified effective interest rate and the total amount determined by the installment calculator.
 [38] The defendant's appeal against the prohibition of Clause 1 is therefore not justified.

 [39] Regarding business practice 1: The defendant's business practice of agreeing partial payment purchases and / or partial payment options with a total credit of at least EUR 200 to pay for the goods purchased by consumers from her is objected to, without the creditworthiness of the consumer based on sufficient To check information, in particular without obtaining information on the income situation and / or financial situation of these consumers.
 [40] The plaintiff sees a systematic violation of the obligation to carry out a credit check according to § 7 VKrG in the fact that the defendant does not collect any information about the consumer's income and other liabilities in the case of installment transactions. In response to the plaintiff's letter of warning, the defendant justified its high interest rate with the fact that no collateral had to be provided for the loans it had granted and no evidence of employment or regular cash inflow had to be provided. The database query and the analysis of previous purchasing behavior did not allow any conclusions to be drawn about income and no prognostic decision as to whether the consumer would be able to meet his payment obligations in full. The database query can be used to obtain information about the consumer's income and assets, but it cannot replace it.
 [41] The defendant counters this by saying that obtaining information from a database, specifically by making an inquiry to the specified credit bureau, fulfills the requirements of Section 7 of the VKrG. In any case, the entrepreneur does not have to approach the consumer. The scope of the investigation obligations depends on the individual case and is lower in the case of small goods loans than in the case of typical bank loans. The defendant allows partial payments for purchase prices between EUR 50 and EUR 4,000 with a term of no more than four years; the majority of the consumer loans granted are around the average amount of EUR 650.
 [42] The first court dismissed the request for an injunction aimed at the omission of business practice 1.
 [43] The appeals court granted the injunction. Legally, it discussed that the lender had to carry out the credit check on the basis of sufficient information. In order to assess the creditworthiness, the current income and liquid funds of the consumer should first be used and compared with the costs of the loan and the current repayment; a database query should only be carried out if this was additionally necessary.
 [44] In its appeal, the defendant asserts that there is no provision for prioritizing the procurement of information and that the credit check can be designed flexibly. Consumers' income and financial situation always show certain fluctuations and uncertainties, which have an impact especially in the case of low monthly payments, so that the information to be obtained from the consumer must be higher, the lower the loan amount. In such cases, however, obtaining detailed information is unusual and does not provide a more reliable statement about creditworthiness than the credit information obtained and the observation of ongoing consumer behavior. Obtaining information is therefore sufficient for small goods loans.
 [45] The appeal is justified.
 [46] 1.1. Anyone who violates a legal requirement or prohibition in business dealings with consumers in connection with consumer credit relationships and thereby affects the general interests of consumers can be sued for an injunction without prejudice to Section 28 (1) KSchG (Section 28a (1) KSchG).
 [47] 1.2. Section 28a KSchG extends the scope of representative actions to include illegal business practices by entrepreneurs in business dealings with consumers, limited to the contractual relationships and non-contractual legal relationships specified in Section 28a (1) KSchG (10 Ob 13 / 17k; 7 Ob 168 / 17g; Kathrein / Schoditsch in KBB6 § 28a KSchG margin no.1). The behavior complained of must also be of importance for a large number of contracts or non-contractual legal relationships, which is especially the case for illegal behavior in mass business (RS0121961). This is to effectively prevent any behavior found to be inadmissible under the law that has developed into a practice of the respective entrepreneur (6 Ob 228 / 16x).
 [48] 1.3. The right to cease and desist - including that according to § 28a KSchG (cf. 10 Ob 13 / 17k; 4 Ob 179 / 18d [Business Practice 2], etc.) - is substantiated by two elements: an obligation to cease and desist and the risk that this obligation to cease and desist is violated. If one of these elements is missing, there is no right to cease and desist (RS0037660).
 [49] 2.1. The subject of the claim for action and the verdict is always only the specific infringing act (RS0037478 [T2, T5]). However, it is permissible to describe the inadmissible behavior in a generalized way and to clarify it by means of "especially" listed individual bans. Even with such a more general version of the injunction, the verdict must cover the core of the infringing act (4 Ob 206 / 19a; 9 Ob 57 / 20b).
 [50] The claim is to be understood as it is meant by the plaintiff in conjunction with the claimant's account (RS0037440).
 [51] 2.2. The core of the business practice 1 complained of by the plaintiff consists in giving consumers the option of partial payment without obtaining information on income “and / or” assets for the purpose of checking creditworthiness. After the request for a judgment and the submission of the action in its entirety, the plaintiff association seeks a ban that is not restricted to specific groups of cases or the existence of specific circumstances; Rather, he takes the position that the information mentioned must always be obtained for the partial payment transactions offered by the defendant.
 [52] The defendant did not claim that it obtained information on the income situation or the assets of its prospective buyers before granting a partial payment option. Only when a consumer requests information about the reasons why he cannot use all payment methods from the defendant (i.e. after rejecting an “unsafe” payment method requested by the consumer) does the defendant request proof of income, for example.
 [53] 2.3. It must therefore be examined whether the defendant, by systematically granting consumers the option to pay in installments without obtaining information about their income and / or assets, violates a legal prohibition, specifically § 7 VKrG. The decisive factor is whether the obligation can be derived from Section 7 VKrG to always provide information about the income and / or the assets of the defendant in the case of partial payment transactions, as offered by the defendant, from a credited purchase price of EUR 200 (see Section 4 (1) VKrG) To catch up with prospective buyers.
 [54] It should be made clear in this context that the injunction does not simply cover the execution of the credit check without obtaining information about the income and / or assets of the prospective buyers, but only the procedure of granting consumers partial payment options without having obtained such information. The practice of refusing to allow partial payment without obtaining information about the income and / or asset situation is therefore not objected to.
 [55] 3.1. According to § 7 VKrG applicable to hire purchase contracts in accordance with § 25 Paragraph 1 VKrG (see Foglar-Deinhardstein in Fenyves / Kerschner / Vonkilch, Klang³ § 25 VKrG margin no. 69), the lender must check the creditworthiness of the consumer using sufficient information before concluding the credit agreement, which he - if necessary - demands from the consumer; if necessary, he must also obtain information from an available database (Section 7 (1) VKrG). If this check reveals considerable doubts about the ability of the consumer to fully fulfill his obligations under the credit agreement, the lender must inform the consumer of these concerns about his creditworthiness (Section 7 (2) VKrG).
 [56] With this, the obligation of the lender to assess the creditworthiness of the consumer in accordance with Article 8 Paragraph 1 of the Consumer Credit Directive (Directive 2008/48 / EC on consumer credit agreements) was implemented in Austrian law. According to Article 8 (1) of the Consumer Credit Directive, the member states ensure that, before concluding the credit agreement, the lender assesses the creditworthiness of the consumer on the basis of sufficient information that he may obtain from the consumer and, if necessary, on the basis of information from the database in question. Those Member States that legally oblige lenders to assess creditworthiness on the basis of a query in a corresponding database can retain this requirement.
 [57] 3.2. The obligation of the lender to assess the creditworthiness of the consumer in accordance with Article 8 Paragraph 1 of the Consumer Credit Directive is intended to protect consumers from irresponsible granting of credit that exceeds their financial capabilities and can lead to their insolvency (ECJ April 27, 2014, C- 565/12, LCL Le Crédit Lyonnais SA, ECLI: EU: C: 2014: 190, margin no. 42 f). In addition, the credit check prescribed by Union law is intended to serve the general interest in a functioning credit industry in the internal market (Recital 6, 7 Consumer Credit Directive; Pesek in Klang³ § 7 VKrG margin no. 1).
 [58] 3.3. According to Section 7 (1) VKrG and Article 8 (1) Consumer Credit Directive, the lender must determine the facts that are relevant for assessing creditworthiness (Pesek in Klang³, Section 7, margin no.27). As a means of information, in Section 7 (1) VKrG as well as in Art 8 Consumer Credit Directive, the gathering of information from the consumer and the gathering of information from an available database are mentioned.
 [59] The creditworthiness is not to be understood as the creditworthiness in the banking sense. Rather, it is about the assessment of whether the consumer will probably be able to meet his payment obligations from the loan agreement in full, without being pushed to the edge of his economic existence (ExplanationRV 650 BlgNR 24. GP 17; Pesek in Klang³ § 7 VKrG Rz 6 f; Zöchling-Jud in Wendehorst / Zöchling-Jud, consumer credit law [2010] § 7 VKrG Rz 6 f; see Heinrich in Schwimann / Kodek, ABGB4 Va § 7 VKrG Rz 4 ff ).
 [60] 4.1. What content the information must have in order to be regarded as sufficient within the meaning of Section 7 (1) VKrG is not described in more detail by law.
 [61] 4.2. In the literature it is consistently stated that the regular (net) income of the consumer and his other liquid assets must be taken into account in the credit check (Pesek in Klang³ § 7 VKrG margin no.10; Heinrich in Schwimann / Kodek, ABGB4 Va § 7 VKrG margin no 9; Zöchling-Jud in Wendehorst / Zöchling-Jud, consumer credit law § 7 VKrG margin no. 9; Dehn in Apathy / Iro / Koziol, Austrian bank contract law IV² [2012] margin no. 2/54). However, the inclusion of non-liquid assets in the creditworthiness check is disputed (for: Heinrich in Schwimann / Kodek, ABGB4 Va § 7 VKrG Rz 9; Pesek in Klang³ § 7 VKrG Rz 12; on the other hand: Wendehorst, What is creditworthiness? In Blaschek / Habersberger , Worthy of a loan? 29 f; Foglar-Deinhardstein, The credit check for consumer credit [2013] margin nos. 237 ff; Weissel, consumer credit: Inquiry obligations of the bank, RdW 2014, 176, 179; ders, The protection provided by § 7 VKrG under civil law: legal beneficence oder Irrweg, ZFR 2012, 208, 210; differentiating [between smaller consumer loans and loans for the creation of housing, which were also covered by § 7 VKrG up to the entry into force of the HIKrG on March 21, 2016] Zöchling-Jud in Wendehorst / Zöchling-Jud , Consumer credit law [2010] § 7 VKrG margin no. 10; Dehn in Apathy / Iro / Koziol, Austrian bank contract law IV² margin no. 2/55). The consumer's income and cash and cash equivalents as well as - depending on the legal opinion represented - other assets are to be compared with the regular burdens of the consumer (Pesek in Klang³ § 7 VKrG Rz 17; Heinrich in Schwimann / Kodek, ABGB4 Va § 7 VKrG Rz 10, 12; Zöchling-Jud in Wendehorst / Zöchling-Jud, consumer credit law § 7 VKrG margin no.12).
 [62] 4.3. It is agreed that the extent of the lender's duty to investigate depends on the circumstances of the individual case, with regard to the amount of the loan value disbursed, the duration of the loan, the informative value and credibility of the information provided by the consumer as well as the existence or duration and intensity the business relationship between the lender and the consumer is important (Heinrich in Schwimann / Kodek, ABGB4 Va § 7 VKrG Rz 14; Zöchling-Jud in Wendehorst / Zöchling-Jud, consumer credit law § 7 VKrG Rz 14; 8 Ob 76 / 16h).
 [63] 4.4. In this sense, Leupold / Ramharter argue for small (commodity) loans that the lender's exploration obligations are limited; In this context, they refer to information from databases and reject any further credit check that is incompatible with the goal of efficient markets (Leupold / Ramharter, The violation of the duty to warn of poor creditworthiness under the Consumer Credit Act, ÖBA 2011, 469, 486).
 [64] 4.5. The content of the "sufficient" information according to Section 7 (1) VKrG must also be specified depending on the circumstances of the individual case. Only in this way, with the help of the statutory general clause, can the legal obligations for the wide range of consumer loans covered by Section 7 (1) VKrG - which includes financial aid within the meaning of Section 25 (1) VKrG, up to large bank loans - be made possible.
 [65] 4.6. This interpretation is in line with the case law of the ECJ on Article 8 (1) of the Consumer Credit Directive.
 [66] In the case of CA Consumer Finance SA, the ECJ made it clear that the directive does not conclusively specify the information on the basis of which the lender has to assess the creditworthiness of the consumer, nor does it specify in more detail whether and how this information is to be checked . Rather, the lender has a margin of discretion when it comes to whether the information he has is sufficient to certify the creditworthiness of the loan applicant and whether he has to check this against other criteria. The lender must therefore assess in each case, taking into account the circumstances of the individual case, whether the information available to him by the loan applicant is relevant and sufficient. Whether the information is sufficient can vary depending on the circumstances of the conclusion of the credit agreement, the personal situation of the consumer or the credit volume provided for in the contract (ECJ December 18, 2014, C-449/13, CA Consumer Finance SA, ECLI: EU : C: 2014: 2464, margin no.36 f).
 [67] 4.7. The lender is therefore not required to obtain information on the income or financial situation of the consumer or on both aspects in addition to obtaining information from an external credit bureau in the case of small goods loans.
 [68] 5.1. According to the findings, the defendant obtains information from an external credit agency before granting partial payment options to new customers and limits the loan amount to EUR 500; for existing customers, it uses any negative credit information available in the group of companies. In addition, she uses the amount of the loan for her decision-making; In addition, there are other factors that are not related to the creditworthiness within the meaning of Section 7 (1) VKrG, such as the residential address.
 [69] 5.2. Particularly in the case of the small loans of goods from a loan amount of EUR 200 or more that are covered by the injunction, the consideration of existing negative creditworthiness information, as can be derived from the information available in the group of companies as well as from the information provided by the credit bureau, does not appear to be entirely unsuitable for credit checks. This is also not claimed by the plaintiff association. Especially in the case of very low loan amounts (from EUR 200) it is not evident that additional knowledge of the net income (at least, unless it is associated with a detailed survey of all, even minor financial burdens) necessarily enables a more reliable assessment than the query whether due to existing “negative creditworthiness information”, the collectability of even very small loan amounts must be called into question from the outset. The same considerations apply to the need to identify the consumer's realizable assets.
 [70] 5.3. Whether the business practice objected to by the plaintiff association, when granting partial payment options in addition to obtaining information from an external credit agency, not to obtain information about the income and / or asset situation of consumers, violates § 7 VKrG, cannot be answered in general, but depends on the circumstances of the case.
 [71] It cannot be ruled out that the partial payment options granted by the defendant exist in which it is necessary to obtain information about the income situation or the financial situation of the consumer or about both. However, the request for an injunction does not focus on more specific cases, but aims to forbid the defendant, in all cases, from agreeing on partial payment purchases or partial payment options with consumers with a total credit of at least EUR 200, without information on the income situation and / or their financial position to catch up.
 [72] However, this request is not justified because of the discretion granted to the lender in the credit check. The revision is therefore justified insofar as it is directed against the prohibition of the objected business practice 1. The judgment of the first court had to be restored to this extent.

 [73] B. On the plaintiff's appeal:
 [74] The appeal by the plaintiff is permissible because the active legitimation of the plaintiff association according to §§ 28a, 29 KSchG to assert violations of the GDPR has not been conclusively clarified.
 [75] Regarding the performance period (Clause 1):
 [76] The appellate court set the deadline for the omission of the use and the appeal to the clause 1 because of the necessary organizational measures for the EDP conversion with six months. Such a necessity is understandable in the present case, in which the inadmissible clause also affects the settlement of all ongoing partial payment contracts (see RS0041265 [T12]). The performance deadline set by the court of appeal is therefore not objectionable in the present individual case.
 [77] Regarding business practice 2:
 [78] The defendant's business practice of carrying out the credit check when lending is based on a scoring without giving the consumer the right to express his own point of view and contest his classification is objected to.
 [79] With this request for an injunction, the plaintiff did not object to the "internal scoring" practiced by the defendant, but to the decision based on the classification made by the external credit agency. The procedure violates Art 22 GDPR for reasons explained in detail.
 [80] The defendant objected that the plaintiff association was not granted any active legitimation regarding data protection information obligations. The alleged violation of Art 22 GDPR did not exist.
 [81] The first court dismissed the claim because the defendant's approach was in accordance with Section 7 VKrG and Article 22 GDPR.
 [82] The appellate court confirmed the dismissal of the action on the grounds that the plaintiff association lacks the active legitimation to assert data protection violations.
 [83] As a significant legal issue, the appeal claims that the appellate court disregarded the fact that the systematic violation of Art 22 GDPR occurred in connection with consumer credit relationships, so that the collective action according to § 28a KSchG was opened.
 [84] 1. In proceedings 6 Ob 77 / 20x, the Supreme Court submitted the following question to the European Court of Justice for a preliminary ruling (RS0133358):
Are the regulations in Chapter VIII, in particular in Art. 80 Paragraphs 1 and 2 and Art. 84 Paragraph 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons during processing personal data, on the free movement of data and on the repeal of Directive 95/46 / EC (General Data Protection Regulation, OJ L 119/1 of May 4, 2016, p. 1; hereinafter "GDPR") contrary to national regulations that - in addition to the powers of intervention of the supervisory authorities responsible for monitoring and enforcement of the regulation and the legal protection options of the data subjects - on the one hand, to grant competitors and, on the other hand, the authority to associations, institutions and chambers authorized under national law, regardless of the violation of specific rights of individual data subjects, because of violations of the GDPR and without the instruction of a person concerned against the infringer by way of an action before the civil courts under the Ges Prohibition of engaging in unfair business practices or violating consumer protection law or prohibiting the use of ineffective general terms and conditions?
 [85] 2.1. The plaintiff in the present proceedings is the same association authorized to take legal action under § 29 KSchG who intervenes on 6 Ob 77 / 20x - there based on § 28 KSchG. In the present proceedings, based on § 28a KSchG, he seeks the omission of a business practice used by the defendant in connection with consumer credit relationships, which violates the GDPR.
 [86] 2.2. The question of whether the plaintiff is legitimized to assert violations of the GDPR by way of a representative action according to § 29 KSchG is also relevant for the decision of the present legal dispute, because the question of whether the Union legislature with the legal protection instruments provided for in the GDPR is possibly a wanted to create a final regulation for the enforcement of data protection violations, also for lawsuits against business practices that are in connection with the legal relationships mentioned in § 28a KSchG, is essential for the decision.
 [87] For example, the Supreme Court referred its request for a preliminary ruling on 6 Ob 77 / 20x also to the representative action "from the point of view of a violation of a consumer protection law" - i.e. in accordance with § 28a KSchG - (cf. . 2020, I ZR 186/17 [Rz 47, 57 ff]).
 [88] 3. The Supreme Court of Justice has to assume a general effect of the preliminary ruling of the European Court of Justice and to apply this also for other than the immediate case. For reasons of process economy, the present procedure must therefore be interrupted (RS0110583).

 [89] C. Regarding the publication requests:
 [90] Because of the interruption of the proceedings with regard to the request for an injunction regarding business practice 2 (violation of the GDPR), the requests for publication made by both parties cannot be conclusively decided. A partial judgment is not appropriate here because further publication after the final judgment is available would entail additional costs that would not be incurred in the case of joint publication (Ciresa, Handbuch der Judgment Publication4 [2017] margin no. 4.28; RS0079937 [T1]).

 [91] D. Decision on costs:
 [92] The reservation of costs is based on Section 52 (4) ZPO.


European Case Law Identifier
ECLI: AT: OGH0002: 2021: 0060OB00048.21H.0806.000