OGH - 9Ob38/19g
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| OGH - 9 Ob 38/19g | |
|---|---|
 | |
| Court: | OGH (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | Article 4(11) GDPR Article 6(1)(a) GDPR Article 7(4) GDPR Article 13(2) ePrivacy Directive 2002/58/EC Unfair Terms Directive 93/13/EEC Data Protection Directive 95/46/EC |
| Decided: | 15.11.2019 |
| Published: | |
| Parties: | VKI Simply TV |
| National Case Number/Name: | 9 Ob 38/19g |
| European Case Law Identifier: | ECLI:AT:OGH0002:2019:0090OB00038.19G.0923.000 |
| Appeal from: | OLG Wien (Austria) |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | RIS (in German) |
| Initial Contributor: | n/a |
Austrian Supreme Court ("OGH") finds that consent to secondary use in terms of service is generally not "freely given" under Directive 95/46.
English Summary
Facts
The Austrian consumer organization ("Verein für Konsumenteninformation", VKI) has sued the provider of encrypted digital terristrial TV in Austria ("Simply TV") under the Austrian implementation of the Unfair Terms Directive 93/13/EEC (§ 6 Konsumentenschutzgesetz - KSchG) because it allegedly used 29 illegal clauses in its Terms of Service. Two clauses (18 and 19) concern data processing. The other parts of the judgment are irrelevant for the purpose of this page.
Clause 18 read as follows:
"The personal data provided by the subscriber as well as data on the type and frequency of his use of the services provided by Simply TV shall be collected, stored, used by Simply TV - insofar as this is necessary for the processing of subscriptions, for the provision of customer services as well as for the invoicing of remuneration - and transmitted to commissioned companies for the purposes of order data processing pursuant to § 11 Data Protection Act 2000."
Clause 19 read as follows:
"Simply TV may send electronic messages (in particular e-mail, SMS) to the subscriber for the purpose of informing him of offers from Simply TV in the pay-TV sector which are similar to the packages and/or channels already subscribed to by the subscriber. Simply TV will only transmit such messages if the subscriber has provided Simply TV with the relevant contact details (in particular e-mail address, telephone number) as part of the subscription. The subscriber may object to the transmission of such messages at any time in writing (post, fax, e-mail: infoservice@s*****.at). The subscriber will be informed of his right of revocation at each transmission of such messages."
Dispute
On Clause 18
VKI claimed that the clause is intransparent, as the controller does not inform about (1) the concrete companies data is shared with, (2) the the fact that the data subject can withdraw his consent at any time and because (3) the data subject may get the false impression that the clause would generally allow to use personal data as describted in the clause during the entired contractual relationship. The controller claimed that there is no duty to name each recipient and that the processing of data was necessary to fullfil thee contract and for the best possible customer service.
On Clause 19
VKI claimed that this clause violates the implementation of Article 13(2) of ePrivacy Directive 2002/58/EG in § 107 of the Austrian Telecommunications Act (TKG), as it does not allow to opt-out from direct marketing communications. The controller claimed that the clause explicitly refers to the right to object.
Holding
Both clauses were found to be invalid.
On Clause 18
The Court joined the view of VKI that the limitation on processing that is necessary for certain purposes (if read in the grammatical meaning) is only limited to the controller, while there is no purpose limitation for sharing data with third parties. The clause would thereby allow to share any data for any purpose with any third party. This was frond to be unfair within the meaning of the Unfair Terms Directive 93/13/EEA.
The court further held that the clause "for purposes of processing by the processor under § 11 Data Protection Act 2000" is ins transparent and not understandable to the average consumer.
There was no need to reassess the issue under GDPR, as this clause was already unlawful under the Austrian implementation of Directive 95/46.
On Clause 19
The Court joined the view of VKI and focused on the fact that objection to direct marketing messages under Article 13(2) of the ePrivacy Directive has to be possible "without any difficulty" ("problemlos"). In the case of text messages (SMS) a consumer has to switch to another form of communication, which is not "without any difficulty", especially when consumers are away from home.
It agreed with the lower Courts that it is ins transparent that a possibility to object is not already presented at the time of signing the contract.
Comment
The Austrian Supreme Court has based the decision on the "most unfavorable" interpretation of the terms (as usual in unfair terms procedures), contrary to an interpretation in the light of consumer law in individual cases.
The case was brought under Directive 95/46. It is remarkable that the Supreme Court held, that ready under Directive 95/46 consent that was required in Terms and Conditions cannot be seen as "freely given". It therefore explicitly refused to reassess the situation under the stricter rules on consent in the GDPR.
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English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the German original for more details.
tribunal: OGH
decision date 23.09.2019
transaction number: 9Ob38/19g
head
The Supreme Court was established as a court of appeal by the President of the Senate of the Supreme Court, Dr. Hopf, as Chairman, and the Court Councillors of the Supreme Court, Hon.Prof. Dr. Dehn, Dr. Hargassner, Mag. Korn and Dr. Stefula in the case of the plaintiff V*****, represented by Kosesnik-Wehrle & Langer Rechtsanwälte KG in Vienna, against the defendant S*****, represented by Mag. Heinz Heher, Rechtsanwalt in Vienna, for omission (EUR 30,500) and publication of the judgment (5th Chamber of the Court of Justice, Vienna)500), on the appeals of both parties against the judgment of the Vienna Higher Regional Court as Court of Appeal of 7 February 2019, GZ 133 R 113/18t-17, which partially confirmed and partially amended the judgment of the Vienna Commercial Court of 26 July 2018, GZ 29 Cg 31/17d-11:
verdict
The revisions of both parties shall be followed in part.
The contested decision is amended so as to amend the action in accordance with Clauses 5, 17 and 18. The period within which the defendant is obligated to refrain from using or invoke the clauses in general terms and conditions and contract forms recognized as inadmissible or of similar meaning in business dealings with consumers shall be six months, and the period for refusing to use the business practice recognized as inadmissible shall be one month.
In addition, the contested decision is upheld.
The decision on the costs of the appeal proceedings is reserved to the court of first instance.
Text
Reasons for decision:
The plaintiff is an association entitled to bring an action within the meaning of § 29 KSchG. The defendant is a limited liability company domiciled in Vienna, which offers private television as pay television throughout Austria, thus making television content available for a fee. Its programme can be received both via satellite and via cable networks. The defendant has around 400,000 customers in Austria and also concludes contracts with consumers. It bases its contracts on its General Terms and Conditions of Business (AGB) and its terms of payment.
The present proceedings concern the plaintiff's request to prohibit the defendant from using or invoking a) 29 clauses of its general terms and conditions of business or - clauses 25 and 26 - remuneration provisions or similar clauses in business dealings with consumers (cease and desist request pursuant to § 28 KSchG) and b) "to invoke telephone contracts for services following calls initiated by the entrepreneur and to assert claims", although consumers have not sent the defendant any written declarations of acceptance of the offer on a durable data carrier, or apply similar practices" (injunction request pursuant to § 28a KSchG). Furthermore, the plaintiff requests that he be authorized to publish the claimant part of the verdict to the extent of the injunction request and the authorization to publish the verdict in a Saturday edition of the editorial part of the "Kronen-Zeitung".
The mutual submissions and the findings made are presented below in connection with the individual clauses. For reasons of clarity, the revisions of the parties will not be dealt with separately, but on the basis of the respective clauses (presented in order).
The court of first instance dismissed the injunction request with regard to clauses 12 and 17; moreover, it granted him and the request for publication of the judgment and ordered the defendant to pay the costs. With regard to the prohibition of the use of the clauses or similar clauses as well as the reference to them, the defendant set the defendant a three-month performance period in each case, but not with regard to the prohibited business practice.
The Court of Appeal did not follow the plaintiff's appeal against the judgment dismissing the action and the three-month performance period granted in part. By way of an appeal by the defendant, however, it amended the initial judgment to the effect that the injunction application was also dismissed with regard to clauses 5, 9 and 18 and that a three-month performance period was also set with regard to the injunction application of the defendant based on § 28a KSchG (prohibited business practice). Insofar as the defendant sought a twelve-month performance period in each case with its appeal, the appeal was not complied with. The decision on costs was changed by the Court of Appeal to a reservation of costs until the final settlement of the dispute. The ordinary appeal was declared admissible.
In the appeal of the plaintiff, it is proposed that the appeal judgment be amended so that the injunction request is granted in respect of all clauses and the performance periods set are waived, unless the performance period relates to the use of the prohibited or similar clauses. In its response to the appeal, the defendant requests that the plaintiff's appeal be rejected.
In the defendant's appeal, an amendment to the judgment on appeal is requested in the entirely dismissal sense, in the alternative, to set aside the judgments of the lower courts and refer the case back to the court of first instance for a new hearing and decision. In the alternative, it is requested that the three-month performance periods be increased to twelve months. In his response to the appeal, the plaintiff requests that the defendant's appeal be dismissed or, in the alternative, that it be rejected.
Legal assessment
Both revisions are permissible and partially justified.
a) To the individual clauses (cease and desist petitions according to § 28 KSchG):
Clause 1:
"S***** points out that in the event of a change in the encryption system or technical standards, the receivers and smartcards may no longer be suitable for the reception of programme content and may have to be replaced.
The plaintiff argued that the clause left unclear what the "technical standards" were, whether the defendant itself would do the exchange or leave it to the consumer and who would bear the costs. Nor does it follow from other clauses that, in the context of a change in the encryption system or technical standards, the consumer would receive a receiver ("loan device") or a smartcard free of charge and would not have to bear the costs of the exchange. According to the most customer-unfriendly interpretation of the incriminated clause, in the absence of any rules as to who would carry out the replacement or bear the costs in the case in question, it must be assumed that the replacement was to be carried out by the consumer or that he had to bear the costs. The clause is contrary to the requirement of transparency laid down in Paragraph 6(3) of the Consumer Protection Act and is grossly disadvantageous within the meaning of Paragraph 879(3) of the General Civil Code.
The defendant contested and argued that it was in the nature of the matter that in this area receivers were not always suitable for reception and that the encryption system had to be adapted to the respective state of the art. The clause merely contains an indication to the consumer that it may be necessary to replace the receivers. It cannot be inferred from it, even if it is interpreted in the most customer-unfriendly way, that the exchange must be carried out by the consumer or that he must bear the costs of such an exchange. Furthermore, it follows from another clause according to which the customer may borrow from the defendant a receiver ('loan receiver') free of charge during a valid subscription contract that the cost of replacing the receiver is not to be borne by the consumer. A further clause also states that if the encryption system is changed, the defendant will replace the smartcard or the receiver.
The court of first instance made the following further findings with regard to clause 1:
"The clauses invoked by the defendant are as follows:
1.2.4 Insofar as the subscriber is given the opportunity upon conclusion of the contract, the subscriber of S***** may borrow a digital receiver together with a hard disk (hereinafter referred to as "loan receiver") until the end of his subscription. The choice of device (in particular manufacturer and colour) shall be determined by S*****.'.
1.5.2 If the encryption system is changed in accordance with 1.5.1, S***** shall be entitled to replace the smartcard provided to the Subscriber and/or the borrowed receivers if the change in the encryption system makes this necessary. [= Clause 9; Note]
The background to these rules is that the defendant's programme is transmitted in encrypted form; for decryption, a defendant's smartcard and corresponding software are required as well as a receiver such as a receiver or a CI-Plus module together with a compatible TV set. Many attempts are made to circumvent the defendant's encryption by means of various hardware and software technical measures in order to be able to view their programs without a corresponding subscription agreement; the defendant attempts to circumvent this by making regular changes to its encryption technology or hardware. In addition, a change in technology may also be required, for example, by a change in the television signal."
Legally, the first court stated that although the defendants had a legitimate interest in a regular adaptation of their encryption technology and hardware, the wording "technical standards" was completely vague and could therefore be understood very broadly to the disadvantage of the customers. In the most customer-unfriendly interpretation - also in connection with points 1.2.4 and 1.5.2 of the GTC - the clause is to assume the content that the customer has to take care of an exchange of the smartcard and/or the receiver himself, otherwise he could lose claims, and that he at least has to bear the costs for the dispatch, even if the exchange is not in his interest, for example because it is only necessary because of the change in the encryption technology. The clause is grossly disadvantageous within the meaning of Paragraph 879(3) of the ABGB and non-transparent within the meaning of Paragraph 6(3) of the KSchG.
The Court of Appeal confirmed the qualification of the clause as grossly disadvantageous within the meaning of § 879 (3) ABGB. It follows from clause 1.2.4 that a claim to a loan receiver exists only if the subscriber was granted this right when the contract was concluded. Even in the case of such loan devices, clause 1.5.2 does not give the customer any right to an exchange (argumento: "S***** is entitled"). The question of bearing the costs also remained completely unregulated, which is why the defendant could make the replacement of the devices dependent on the assumption of costs. If the interpretation is most hostile to the customer, the clause complained of should be understood as meaning that the defendant would be entitled to change the encryption system or technical standards at any time and that the customer would then have to replace his receiver and smartcard at his own expense in order to continue to receive the defendant's programme.
In its appeal, the defendant reiterates its legal position already referred to and, in particular, maintains that it follows from clause 1.5.2 (meant) that it is not the consumer but the defendant who must carry out the exchange.
This is to be explained:
The defendant ignores the fact that the wording of clause 1.5.2 merely entitles it, but does not oblige it, to replace the smartcard provided to the subscriber and/or the receivers lent. The clause in question or clause 1.2.4 does not specify who must replace the receivers in the event of a change in the encryption system or technical standards.
The "transparency requirement" based on § 6 para 3 KSchG is intended to enable the consumer to obtain reliable information about his rights and obligations in the performance of the contract from the GTC or the contract form so that he is not deterred from enforcing his rights and is not required to comply with unjustified obligations (RS0037107 [T3]; RS0115217 [T8, T41]). He may also not be deceived or left unclear about the legal consequences resulting from a regulation (Kathrein/Schoditsch, KBB5 § 6 KSchG Rz 32; cf. RS0115219 [T21]).
Since the clause complained of merely informs the consumer that in the case in question the aforementioned equipment "has to be exchanged", a clear regulation is provided as to who is obliged to do so and thus would also have to bear the costs of the exchange, but there is no provision, the consumer is left in the dark about the legal consequences of the situation mentioned in the clause. The clause is thus in any case intransparent within the meaning of § 6 (3) KSchG.
Clause 2:
"In connection with subscriptions, S***** may make it possible to purchase receivers at reduced prices. In these cases, the purchase offers are inseparably linked to the subscription. If the subscriber purchases the receiver, it remains the property of S***** until all subscription fees have been paid for the agreed minimum contract period. The purchase may also be linked to an extension of an existing subscription and/or a minimum contract period. In the latter case, the retention of title shall apply until payment of all subscription fees for the agreed minimum contract term.".
The applicant argued that the clause was grossly discriminatory within the meaning of Paragraph 879(3) of the ABGB because the retention of title agreed in it for a receiver purchased at reduced prices was extended to payment of all subscription fees. If the clause is interpreted in the most customer-unfriendly way, the reduction in the purchase price could also be very small; nevertheless, according to the clause, the customer only becomes the owner of the receiver purchased at reduced prices after payment of all subscription fees. There was no objective justification for this. Moreover, the clause is surprising and disadvantageous in the sense of § 864a ABGB, since the customer, if he buys something and pays a - albeit reduced - purchase price for it, does not have to reckon with the fact that he only becomes the owner upon payment of all subscription fees. Moreover, according to Decision 1 Ob 40/73, such an extended retention of title is inadmissible.
The defendant contested and argued that the extension of the retention of title to the payment of all subscription fees was objectively justified because consumers could sometimes purchase receivers at a value significantly lower than that of the defendant's receivers in actions. It should be noted that the retention of title relates only to claims arising from a single contractual relationship inextricably linked to the purchase, namely the subscription contract. The clause is therefore neither grossly discriminatory nor surprising.
The court of first instance made the following further findings on clause 2:
"The defendant granted such purchase options, linked to certain minimum terms, for certain actions until approx. August 2014. Both the purchase option and the purchase price, which was EUR 9.90 or EUR 49 depending on the model, were announced upon conclusion of the contract.
Legally, the court of first instance stated that the agreement of an extended retention of title was judged invalid in doctrine and jurisprudence because it contradicted mandatory principles of property law and violated the step-by-step principle. For a consumer it is also surprising and disadvantageous in the sense of § 864a ABGB that he does not acquire ownership of the receiver after expiry of the minimum contract term and payment of the purchase price, but only after payment of all subscription fees for the minimum term. In this respect, it would be up to the defendant to clarify in advance if or that the subscription contributions were to be understood as additional purchase price instalments. The clause constitutes an inseparable unit and should therefore be prohibited as a whole.
The Court of Appeal confirmed this decision. The fact that the retention of title relates exclusively to the subscription contract inextricably linked to the purchase of the receiver and that the discounts on the receivers are so high that they are not even covered by the subscription fees during the minimum period does not alter the inadmissibility of the clause. Even if the defendant's pricing is not cost-covering, the clause does mean that the proportion of the total charge attributable to the subscription is secured by the retention of title to the receiver. In the case of the uniform ordering of composite services, the condition for the transfer of reserved ownership of an item, in respect of which a reservation of ownership is agreed, is already fulfilled if only the partial remuneration for that item has been paid. The Oberster Gerichtshof (Supreme Court) has already ruled on 1 Ob 40/73 (= SZ 46/38) that an agreement according to which the retention of title is not to expire until all or a certain part of claims arising from a business relationship have been settled is contrary to the publicity provisions under Austrian law and is therefore invalid. The clause was therefore unlawful.
In its appeal, the defendant reiterates its view, already expressed in the appeal, that the clause is admissible because consumers receive such a high discount for the receivers in the context of the campaign that the amount cannot be covered during the minimum term of the subscription.
In that regard, it must be pointed out:
There is no lawful execution of the appeal in an appeal if the appellant does not even deal with the arguments of the Court of Appeal (RS0043603 [T9]). Especially since the defendant lacks any reply to the various arguments of the appellate court, its plea in law on this point is not lawfully implemented.
Clause 3:
"The subscriber is obliged to return the loan receiver provided by S***** to S***** within 14 days of termination of the subscription. In the event that the subscriber terminates the subscription without good cause or if the subscriber is to blame for the termination of the subscription, the return shall be at the expense and risk of the subscriber. If the subscriber does not comply with this obligation, S***** shall be entitled, at its own discretion, either to claim a monthly, appropriate compensation for use of the rental receiver until the return of the receiver in due form, or to claim compensation corresponding to the value of the rental receiver after requesting the return of the receiver and the unsuccessful expiration of the set deadline. If the subscriber does not return the loan receiver in a proper condition, S***** reserves the right to claim appropriate compensation. Both parties are at liberty to claim that a higher, lower or no damage has been incurred."
The plaintiff argued that the clause contradicted § 879 (3) ABGB and the transparency requirement of § 6 (3) KSchG. It should oblige the consumer to pay a lump-sum compensation in the sense of a "reasonable monthly compensation for use", but the amount of the compensation for use is not apparent from it. Furthermore, the consumer is obliged to return the receiver in proper condition without it being clear what "in proper condition" exactly means. This allows the defendant to argue arbitrarily that the receiver was not in "proper condition" at the time of return. A normal wear is to be accepted with leases by the landlord. According to the clause, which speaks of a "monthly, appropriate compensation for use", the defendant could also claim a monthly compensation for use in any case until the return of the loan receiver, i.e. compensation without a proportional reduction in the case of a restitution before the end of a month.
The defendant contested and argued that it would also be entitled, under the general rules of enrichment law, to demand an appropriate usage fee if a customer refused to return the receiver provided on loan after termination of the contract. The clause is based on this. The obligation to return the receiver provided on loan "in proper condition" implies that normal wear and tear would still be tolerated. It follows from the wording of the clause that the defendant could in no way be required to return an unused or even new receiver. A reasonable consumer would also not assume that "proper" means that the receiver must be returned absolutely new and without the slightest traces of use. The clause is neither intransparent nor grossly disadvantageous.
The court of first instance qualified the clause as intransparent within the meaning of § 6 (3) KSchG because it was not derivable for the customer what a "monthly, reasonable compensation for the use of the rental receiver" was "until the proper return". The question arises as to whether this is the subscription fee or more or less and for what period the compensation for use is due and in what proportion it is in "improper condition" in relation to the aforementioned compensation for damages upon return. In the case of the most customer-hostile interpretation, the term "orderly" goes beyond "fit for purpose" or "age-appropriate" and could also include a condition as at delivery and additional obligations such as a return of the original packaging, instructions and the like, which in turn would be grossly disadvantageous.
The Court of Appeal confirmed this decision. The obligation to pay a "monthly, reasonable compensation for use" means that even a delay of only one day would result in the obligation to pay a monthly fee, which would be grossly disadvantageous. A borrower is liable according to §§ 978 f ABGB only for the damage caused by his fault or accidental damage caused by an unlawful act, the use contrary to the agreement or the unauthorized transfer of the item to a third party. On the other hand, the clause confers on the defendant a claim for damages regardless of fault if the return of the loan receiver is no longer possible or the device is no longer in "proper condition". Under the special circumstances of the GTC, a deviation from the dispositive law would only be permissible if there was a special justification; such a justification was not apparent here. Since the "proper condition" possibly permits age-related wear and tear, but in any case presupposes the functionality of the device, the clause means that the consumer is liable for the condition of the loaned device even if it has become inoperable due to a technical defect for which he is not responsible.
In its appeal, the defendant argues that the clause only provides for a claim for damages on the part of the defendant within the framework of the statutory limitations of §§ 978 f ABGB and that the term "proper condition" does not cover the case of the receiver's inability to function due to a technical defect for which the consumer is not responsible. With regard to the concept of "reasonable compensation for use", the defendant reiterates its view that it could already demand an appropriate compensation for use for receivers returned late in accordance with principles of enrichment law. A "reasonable" is a common term used in the law of enrichment, which even in the case of the most customer-hostile interpretation cannot be assumed to contain any content according to which a monthly fee would have to be paid even in the case of only one day's delay.
This is to be explained:
In the context of the
The association lawsuit has failed to interpret the clauses in the
"most customer-hostile" sense. Afterwards it is to be examined whether an offence against a legal prohibition or against morality is present (RS0016590).
The defendant ignores the fact that the clause provides for "a monthly, appropriate compensation for the use of the loan receiver", thus (at least in the most customer-unfriendly sense) determining a compensation of at least one monthly fee for even slightly started monthly periods, i.e. not just a merely appropriate compensation in the sense of the dispositive enrichment right. No objective justification was put forward for this deviation from dispositive law. Moreover, it is not convincing if the defendant believes that the clause only provides for a claim for damages by the defendant within the framework of the statutory limitations of §§ 978 f ABGB; this is not covered by its wording, which is why it must be agreed with the court of appeal that the clause confers a claim for damages independent of fault if the defendant interprets it in the most customer-hostile way. The defendant's view that the term "proper condition" does not cover the case of the receiver's inability to function due to a technical defect for which the consumer is not responsible is equally unconvincing. According to general usage, a non-functioning receiver is not "in proper condition", even if the malfunction has occurred through no fault of its own. The argumentation in the defendant's appeal does not show any incorrectness in the judgment of the court of appeal.
Clause 4:
"S***** reserves the right to update the software of a digital receiver or data stored on it at any time free of charge. The subscriber acknowledges that this may result in the loss and/or deletion of data/content stored by the subscriber in the digital receiver.
The plaintiff argued that the clause was grossly discriminatory and therefore ineffective within the meaning of § 879 (3) ABGB (Austrian Civil Code), since the clause did not allow the consumer to obtain timely knowledge of the update and thus to save his data in a timely manner or to view the contents on the digital receiver in a timely manner prior to their possible deletion. Whether the clause is handled in practice in such a way that no loss of data occurs is irrelevant in the association's process, because it is not a question here of a practical handling that deviates from the wording of the clause.
The defendant denied and replied that the regular updating of the software was absolutely necessary for its performance due to technical and licensing requirements. It was simply not possible to inform the consumer separately of each individual update. A loss of data through the update only occurs in the rarest of cases. The clause was objectively justified and not grossly disadvantageous.
The court of first instance made the following further findings on clause 4:
"A regular software update is necessary on the one hand for the reception of the defendant's program and on the other hand due to licensing requirements of the rights holders and must be carried out at short notice in the event of a technical emergency. To date, no large amounts of data have been lost as a result of such an update. In the case of receivers, a distinction must be made between pure zapping receivers and so-called hard disk receivers with which content can also be recorded. Due to copyright and licensing requirements, a copy of the defendant's digitally stored content from the hard disk receiver to another medium not approved for this purpose (such as a PC or an external hard disk) is not permitted."
Legally, the court of first instance stated that, although it was not objectionable that the defendant reserved the right to update the software, it was very much objectionable that the defendant de facto stipulated a comprehensive, generally applicable disclaimer of liability for data loss without imposing its own duties to act. In the case of the most customer-hostile interpretation, this could result in a hard disk receiver being de facto worthless because the contents are regularly deleted before they can be viewed by the customer and he cannot derive any warranty or termination rights from this. The provision was therefore grossly discriminatory.
The Court of Appeal confirmed this decision. The clause, if interpreted in the most customer-unfriendly way, confers on the defendant the right to update software without regard to the data stored by the customers, even though the subscribers have a legitimate interest in retaining the data stored by them on their hard disk receivers. Since the defendant's range of services also includes the possibility of storing the programme content, the unrestricted right to delete the data within the framework of software updates at any time and without prior notice means an erosion of that promise of services.
In its appeal, the defendant takes the view that the clause is in any event objectively justified and therefore admissible, because it is simply impossible for the defendant to completely exclude a loss of data caused by a necessary software update, nor to inform the subscriber beforehand of an update to be carried out, because this must be carried out at short notice in technical emergencies.
This must be explained:
The defendant ignores the fact that the clause is not limited to the emergencies that are at the centre of its revision, but that it grants the defendant the blanket right "at any time" and thus without any prerequisite to update the software of a digital receiver or data stored on it. This is accompanied - at least in the case of the most customer-hostile interpretation (RS0016590) - by a comprehensive, generally valid exclusion of liability for data loss, as correctly recognised by the court of first instance, and, as correctly emphasised by the court of appeal, by a threatened erosion of the service promise that the customer can store program contents. The qualification of the clause as grossly disadvantageous by the lower courts is thus not to be objected to.
Clause 5:
"S***** guarantees in such a way that the CI Plus module is suitable for decoding the transmission signals from S*****. S***** offers no guarantee that the Sky programme content can be received in full or used in full via the CI Plus module in conjunction with a terminal (TV, screen, etc.) compatible with the CI Plus module provided by the subscriber. If the subscriber is therefore unable to receive or make full use of the S***** programme content via the CI Plus module, this does not entitle him or her to cancel the subscription."
The plaintiff argued that the clause contradicted § 9 KSchG, as it limits the warranty to a certain function of the CI Plus module in the case of the most customer-unfriendly interpretation. Even in the case of a faulty CI Plus module provided by the defendant, i.e. in combination with a fully functional terminal provided by the consumer, any warranty with regard to the program content of the defendant is excluded. Moreover, since the defendant does not offer any guarantee that the S***** programme content can be received in full or used in full, even in the case of a subscriber's "CI Plus module compatible terminal", the clause grossly discriminates against the consumer within the meaning of Paragraph 879(3) of the ABGB. Similarly, the contractual exclusion of premature cancellation in the event of non-reception or impossibility of full use of the S***** programme content via the CI Plus module constitutes a deterioration in the legal possibilities of the consumer side and thus a gross disadvantage. In addition, the clause is intransparent within the meaning of § 6 (3) KSchG, since it gives the consumer a false impression of his warranty rights, since in the case of continuing obligations, premature termination is possible for an important reason after a comprehensive weighing of interests, if compliance with the contract can no longer be reasonably expected in good faith.
The defendant countered that, even in the case of the most customer-hostile interpretation, the clause does not refer to the case of a faulty CI Plus module but only to the case where a customer uses a faulty terminal (TV, screen, etc.) and is therefore unable to receive its programme content. The clause therefore does not affect the services owed by the defendant, which is why § 9 KSchG has not been violated. It is in the consumer's hands to enable, for example, the reception of the defendant's programme content by replacing the defective terminal. Otherwise, he could prematurely terminate the subscription contract by misusing a defective terminal device. The clause is neither intransparent nor grossly discriminatory.
The court of first instance made the following further findings on clause 5:
"The defendant provides the smartcard and, if desired, a CI Plus module as an alternative to a loan receiver (quasi an adapter that replaces the zapping receiver and can be inserted into an existing receiver or a TV set with a corresponding slot). However, not every device with a CI (Plus) slot is also suitable for the use of the defendant's programmes; information on this can be obtained from the manufacturer and/or seller".
Legally, the court of first instance qualified the clause as grossly disadvantageous within the meaning of § 879 (3) ABGB and as a violation of § 9 KSchG. The defendant, with it, excludes both the warranty and a right of termination in the event that the terminal device provided by the customer is basically compatible with the CI-Plus module, but its program cannot nevertheless be received. This would not normally be apparent to a customer, in particular if he did not purchase a new terminal device, prior to an attempt to put it into operation.
The Court of Appeal amended the judgment on this point by dismissing the action. The consumer's warranty rights could not be excluded or limited under § 9 (1) KSchG prior to knowledge of the defect. However, a warranty claim according to § 922 ABGB presupposes defective performance. A service is only defective if it is qualitatively or quantitatively lower than what is contractually owed. The clause only refers to the compatibility of the terminal provided by the customer, which is not covered by the defendant's obligation to perform. Therefore, it does not constitute a limitation of statutory warranty claims if the clause excludes claims arising from the lack of compatibility of a terminal already available to the customer. The plaintiff's view that the clause disguises the actual legal situation because the customer in any event has an extraordinary right of termination after the continuation of the contractual relationship in such a case would be unreasonable for him is not convincing. It was correct that continuous obligations could be dissolved according to general principles of civil law even before the expiry of the agreed period for important reasons. However, such an extraordinary right of termination did not exist if the asserted reason was exclusively in the creditor's sphere of risk. The examination of the compatibility of the terminal already in his possession falls in any case within the sphere of risk of the customer. Furthermore, the continuation of the contractual relationship was not unreasonable for the customer because he could continue to make use of the services of the defendant by using a compatible receiver. The fact that the defendant did not assume any guarantee for the technical functions of the terminal equipment already at the customer's premises was also not unusual or disadvantageous.
In his appeal, the plaintiff countered the court of appeal that the defendant's customer had nothing to gain from merely being able to "decode" the signals if he could not subsequently use them in the sense of actually watching the TV programmes. The clause expressly refers to the fact that the customer provides a compatible terminal anyway. For the customer of the defendant, a differentiation between the "decoding" of the transmission signals (for which the defendant provided a guarantee) and the reception of the programme content (for which no guarantee should be provided) was not comprehensible. The programme content was either to be received by the customer or not, whether the reception for the customer using a compatible device failed at the level of decoding the signal or its representation on the device made no difference to him.
This must be explained:
The plaintiff's legal complaint is not convincing with regard to the creation of a gross discrimination within the meaning of § 879 (3) or an infringement of § 9 KSchG. According to the established facts, not every receiver with a CI (plus) slot is suitable for the use of the defendant's programmes. Information on this is provided by the manufacturer and/or seller of the receiver. According to the findings, the customer can also determine whether he owns or acquires a suitable or unsuitable receiver with a CI (plus) slot. Against this background, the basic thrust of the clause is that the defendant only guarantees that its signals will be decoded by the CI Plus module, but not that they will be correctly displayed by the respective terminal device - which it does not even know and which the customer itself provides - and that, if the latter fails, this does not entitle the defendant to terminate the subscription, which is harmless.
However, the clause is intransparent within the meaning of § 6 (3) KSchG. By referring on the one hand to a "CI Plus module compatible terminal" and on the other hand to a guarantee and termination of the subscription being excluded despite its use, the clause appears contradictory from the point of view of an average, non-technically experienced customer. It is not clearly communicated to the customer that the use of a terminal compatible with the CI Plus module for the successful reception of the defendant's transmission signals is merely a necessary but not sufficient condition. The transparency requirement may result in an obligation to be complete if the effects of a clause for the customer otherwise remain unclear (RS0115219). The clause suggests that the customer only has to ensure that his terminal device CI Plus module is compatible; in this respect it is incomplete. The plaintiff's appeal therefore had to be followed and the defendant had to be ordered to cease and desist from this clause as well.
Clause 6:
"In the event that the subscriber uses a smartcard to receive the S***** programme privately outside the household to which the subscription is registered, S***** is entitled to claim a contractual penalty of € 1,000.00 from the subscriber.
The plaintiff argued that the contractual penalty was grossly discriminatory within the meaning of Article 879(3) of the Austrian Civil Code because it was not based on the average damage which, according to the estimation of a bona fide observer, would normally occur in the event of the breach of contract. The amount of EUR 1,000 was inappropriately proportional to the damage suffered by the defendant in individual cases as a result of the consumer's conduct in breach of contract. Any agreements between the defendant and its licensors could not be passed on to consumers by way of disproportionately high contractual penalties. In view of the amount of the contractual penalty, it would seem reasonable that it should not be based on the average damage, but should be massively excessive, especially since the private use of a smartcard by the consumer outside the household (which, according to the most customer-unfriendly interpretation, is also merely a one-off use), on which the subscription is registered, could probably never lead to such an amount of damage.
The defendant replied that the amount of the contractual penalty was in particular the result of the contractual requirements of its licensors. The clause is objectively justified in view of the infringement of the customer's rights. If the damage caused by the customer was actually less than the contractual penalty, the latter was subject to the right of judicial moderation under § 1336 (2) ABGB.
The court of first instance made the following further findings on clause 6:
"The defendant has contractually obligated itself to its licensors to implement such contractual penalties. It is not possible to determine what or how much damage is average from the private use of a card".
Legally, the first court qualified the contractual penalty as disproportionate and grossly disadvantageous within the meaning of § 879 (3) ABGB. Of course, in particular the use of a cheap private subscription for a business premises should be prevented, e.g. a football transmission in a restaurant, in order to generate customers; in this respect, however, a commercial use would exist. Here it is completely unclear how damage of EUR 1,000 per private use outside the household to which the subscription is registered is to be incurred. Only the costs for a saved second card, which are below the regular monthly subscription fee, are conceivable.
The Court of Appeal confirmed this assessment. The amount of the agreed contractual penalty could be a gross disadvantage for the contractual partner. In the adequacy test of a contractual penalty under § 879 (3) ABGB, it was important whether the amount of the remuneration was based on the average loss which, according to the estimate of a bona fide observer, would normally occur in the event of the breach of contract sanctioned by it. In this connection, the Supreme Court had ruled that a contractual penalty equivalent to the annual membership fee of a fitness studio was grossly disadvantageous if it was imposed in the case of a single infringement and irrespective of how often the prohibition to pass on a membership card had been infringed. In the present case, too, the contractual penalty of EUR 1 000 would accrue if the smartcard were used only once for private purposes outside one's own household, which means that it is disproportionate to the actual damage suffered by the defendant. In addition, in the case of the most customer-hostile interpretation, the contractual penalty would be incurred for each individual infringement, which would result in inappropriateness in view of the multiplication in the case of multiple infringements. According to the case-law, the fact that the contractual penalty is subject to the right of judicial moderation does not alter the inadmissibility of the agreement, because the purpose of the association's proceedings is not to subsequently correct inappropriate contractual provisions in individual cases, but to exclude clauses with inappropriate provisions from the outset. Nor does the fact that the defendant has undertaken to agree such contractual penalties with its licensors authorise it to demand unreasonable contractual penalties from its customers.
In its appeal, the defendant argues to the Court of Appeal that, given the numerous possibilities with regard to the extent of such infringements by subscribers, it is not possible for it to calculate the damage more precisely ex ante. Therefore, a lump sum of EUR 1,000 was objectively justified.
This is to be explained:
The defendant's argumentation in its appeal does not show any incorrectness in the - independently viable (cf. RS0118709) - assessment of the court of appeal that the clause is also grossly disadvantageous because the contractual penalty in the case of the most customer-unfriendly interpretation would apply to each individual infringement and would therefore multiply unreasonably in the case of multiple infringements. If the appeal court does not at all deal with an equally fundamental statement of grounds in the appeal, the plea in law is not legally implemented insofar (cf. RS0043603 [T4, T16]). Moreover, the justification of the concrete amount of the contractual penalty already fails because the defendant was unable to prove what the damage was in such a breach of contract and how high it could be (cf. the negative decision of the first instance). The determination of a minimum amount of damages to be paid, irrespective of whether an expense is incurred at all, is considered grossly disadvantageous in the case-law (7 Ob 173/10g [Clause 27]; 4 Ob 110/17f [Pkt 3.] = RS0123253 [T1]).
On clauses 7 and 10:
"The subscriber is obliged to inform S***** immediately of any damage to or loss of a smartcard provided by S*****. This obligation also applies if other reception disturbances occur and last longer than three days."
"The subscriber is obliged to inform S***** immediately of any damage to or loss of a receiver and accessories provided by S*****. The same obligation applies if other reception disturbances occur and last longer than three days."
The plaintiff argued that the clauses infringed § 9 KSchG because, according to the most customer-hostile interpretation, they provided for an obligation on the part of the consumer to give notice of defects. They also contradict § 879 (3) ABGB and § 6 (3) KSchG, since the term "other reception disturbance" is indefinite and, according to the clause, the customer has the incomprehensible obligation to report such reception disturbances. It was not reasonable for the customer, e.g. in the case of absence due to holidays, to ensure that reception disturbances lasting longer than three days were reported to the defendant. If the customer wishes to use the defendant's services, it will be in the customer's interest to report to the defendant any interference with reception and any damage to the smartcard or the receiver provided, including accessories. It is not clear for what reason it should constitute a breach of contract if the Customer does not immediately report any reception disturbances or damage to the smartcard. In the event of a breach of the reporting obligation, the defendant could
- even in the absence of an express provision regarding individual legal consequences - to assert claims for damages against the customer on the basis of the clause. It is also conceivable that the defendant may attempt to ward off justified warranty claims - in particular the associated reduction in remuneration - due to the violation of the "notice of defects" provided for in the clause.
The defendant argued that the clause did not violate § 9 KSchG because the customer's warranty rights were not restricted. Moreover, the clause did not provide for any legal consequences if the customer did not report an interruption of reception, which is why it was not grossly disadvantageous or intransparent. The clause was intended to ensure that any reception disturbances on the part of the defendant could be remedied as soon as possible; it was objectively justified on the basis of the quality assurance sought in the interest of the customer. The defendant had never asserted the claims for damages brought by the plaintiff against a customer. In addition, the smartcard or the receiving device was left to the customer free of charge, namely within the framework of a loan for the duration of the contractual relationship. In the absence of remuneration for the loan contract, warranty law is not applicable.
The court of first instance stated legally that the clause was either grossly disadvantageous or intransparent, depending on the meaning attributed to it and whether legal consequences were derived from it. An immediate, penalised obligation on the part of the consumer to give notice of defects for any "damage" and "reception disturbances" exceeding three days could not be justified objectively on the basis of a quality control by the defendant. If, however, in the sense of the defendant, one assumes that a violation of the provision cannot have any adverse consequences for the customer, then this is concealed from the customer in the sense of § 6 (3) KSchG, since there is talk here of an "obligation", so that he could be prevented by the wording from asserting rights to a reduction in remuneration or rights of termination if there was an interruption in receipt, but he had not reported this "immediately".
The Court of Appeal confirmed this decision. According to the clause, the subscribers expressly have an "obligation" to do so. Moreover, the court of first instance had rightly pointed out that quality assurance could not justify the burden on the customer by imposing an immediate reporting obligation. Quality assurance was the defendant's responsibility and should not be passed on to its customers. It was not objectively justified that the deficient performance of the defendant should trigger its customers' duties to act. It must be left to a customer to remain inactive and to accept the defective performance.
In its appeal, the defendant upholds its view that there could be no gross discrimination against the clause because the clause does not provide for any legal consequences in the event of non-notification. Only the subscribers could suffer damage to their smartcards or receivers.
This is to be explained:
The assessment by the Court of Appeal is correct (§ 510 para 3 sentence 2 ZPO). Even if the non-fulfilment of the reporting obligation mentioned in the clause does not have a negative legal consequence for the customer, i.e. if the clause is a lex imperfecta, the wording of the clause could lead a customer to believe that he is always complying with his reporting obligation. The fulfillment of the obligation would, however, already grossly disadvantage him because the quality assurance which the clause is intended to serve is not his task but that of the defendant.
Clause 8:
"The subscriber is obliged to return the smartcards provided by S***** to S***** at his own expense and risk within 14 days of termination of the subscription at the latest (regardless of whether they have been properly or extraordinarily cancelled or otherwise terminated), unless S***** is obliged to bear the costs and risks due to statutory revocation provisions. In the event of damage to the Smartcard occurring during the custody of the Subscriber and for which the Subscriber is responsible, or in the event of loss of the Smartcard for which the Subscriber is responsible, the Subscriber shall pay compensation in the amount of € 35.00.".
The plaintiff argued that the use of the smartcards presupposed the relationship of the paid S***** subscription and was directly factually related to the subscription. The handover of the loan device is compensated by the payment of the subscription fee. Even if the defendant is to blame for an extraordinary termination, the clause obliges the subscriber to return the smartcard to the defendant at his own expense and risk, so that it is grossly disadvantageous within the meaning of § 879 (3) ABGB. It is also intransparent within the meaning of § 6 (3) of the Austrian Consumer Protection Act (KSchG) because it imposes on the subscriber an obligation to pay damages in the event of "loss or damage for which he is responsible", without pointing out the necessary fault of the subscriber; for the subscriber it is not clear what "responsible" means. The smartcard could have been lost in the sphere of the customer even without his fault, e.g. due to theft or force majeure, e.g. fire. A consumer who is not legally versed cannot be expected to recognise the "right" meaning.
The defendant countered that the clause was not grossly disadvantageous for the consumer because the smartcard was given to him free of charge under a loan agreement. The phrase "in the event of a loss for which he is responsible" can only be understood as an indication of culpable conduct, which is why the provision is not intransparent.
The court of first instance made the following further determination with regard to clause 8:
"The smartcard used to decrypt the defendant's program is provided by the defendant on loan. The obligation to return the smartcard is also intended to prevent misuse by unauthorized access through hardware and software manipulation."
Legally, the court stated that an obligation on the consumer to return the smartcard at his own risk and expense within 14 days of the termination of any contract (unless statutory revocation provisions provide otherwise) is grossly disadvantageous, especially if the date and reason of termination cannot be influenced by the customer and the termination of the contract is even due to the fault of the defendant. Contrary to the defendant's view, a loss (damage) for which the customer is responsible is to be understood further than a culpable loss. The second part of the clause is intransparent within the meaning of § 6 para 3 KSchG, because it is unclear under which conditions the customer is liable or grossly disadvantageous, e.g. if damages would have to be paid for the lost item even without a culpable delay in restitution.
The Court of Appeal confirmed this decision. An obligation to return the smartcard was not grossly disadvantageous because it was only made available to the customer on loan. However, the clause is intransparent within the meaning of § 6 (3) KSchG because it conceals the consumer's actual legal position. By referring to "statutory revocation provisions on the bearing of costs and risks", it conceals to the customer those cases in which the defendant is obliged to bear costs and risks. In addition, it remained unclear to the customer under which conditions he was "responsible" for damage. According to the case-law of the Supreme Court, clauses which provide for the consumer's liability for damages "for which he is responsible", but which do not point out to him that this obligation presupposes fault, violate the principle of transparency.
In its appeal, the defendant considers the legal opinion of the Court of Appeal that the clause is intransparent to be incorrect, because an average consumer would understand "loss for which he is responsible" as "culpable conduct" and would not make any further interpretations. Similarly, for an averagely circumspect consumer, what is to be understood by "statutory revocation provisions" is transparent.
This is to be explained:
The argumentation in the revision is not convincing. Reference can be made to the Appellate Court's correct reasoning for the inadmissibility of the clause due to lack of transparency within the meaning of § 6 (3) KSchG (§ 510 (3) sentence 2 ZPO).
Clause 9:
"If the encryption system is changed in accordance with Clause 1.5.1, S***** is entitled to replace the smartcard provided to the subscriber and/or the borrowed receivers if the change to the encryption system makes this necessary.
The plaintiff argued that the clause was intransparent within the meaning of § 6 (3) of the Austrian Consumer Protection Act (KSchG) and in any case, if interpreted in the most hostile manner to the customer, also grossly disadvantageous within the meaning of § 879 (3) of the Austrian General Civil Code (ABGB). It does not regulate who assumes the costs for the exchange. In all other respects, the plaintiff referred to his comments on clause 1.
The defendant replicated that, even in the case of the most customer-hostile interpretation, the clause did not indicate that the consumer had to bear the costs of replacing the smartcard or the borrowed receiver. On the contrary, it is clear that the replacement can be carried out by the defendant and at its expense, particularly since both the smartcard and the receivers are loaned by the defendant to the customer and are therefore made available free of charge. The clause is neither opaque nor grossly discriminatory. Moreover, the defendant also referred to its observations on clause 1.
The court of first instance referred to its reasoning on Clause 1. It does not follow from the rule that the defendant must carry out the exchange at its own expense, i.e. must also bear the shipping costs, even if the exchange is solely in its interest. The clause was grossly disadvantageous within the meaning of § 879 (3) ABGB and non-transparent within the meaning of § 6 (3) KSchG.
On this point, the Court of Appeal amended the decision in the sense that it dismissed the action. The clause could not be inferred that the customer would have to bear the costs of the exchange, even in the case of the most customer-hostile interpretation. The clause grants the defendant a right to exchange, but does not provide for any claims for reimbursement of costs. There was also no contractual or legal basis for the defendant's claim for reimbursement of costs in the event of a change in the encryption system. It is absolutely objectively justified for the defendant to reserve the right to replace the smartcard and the borrowed receivers, because only in this way can it implement any necessary modernisation of its encryption system. Nor is the wording of the clause unclear or incomprehensible.
In his appeal, the applicant takes the view that, like Clause 1, Clause 9 must be understood as meaning that the customer must replace his receiver and smartcard at his own expense in order to continue to receive the programme. It does not follow from the wording of the clause that the defendant would carry out the exchange at its own expense, but rather that the customer could be charged with shipping costs here, even if the exchange were in the sole interest of the defendant. The clause provides for the defendant's right to replace the smartcard and/or terminal equipment. The smartcard and terminal equipment are located at the defendant's customer's premises, so that this exchange can only take place in such a way that the previous smartcard and terminal equipment are physically transferred from the customer to the defendant. Accordingly, contrary to the opinion of the Court of Appeal, the clause is to be understood as meaning that the defendant's customers would be charged with shipping costs.
This is to be explained:
The assessment by the Court of Appeal is correct (§ 510 (3) sentence 2 ZPO). There is also no inconsistency in the assessment of Clause 1, since it merely stipulates that the defendant may change its encryption system, but the question of exchange remains completely open there, so that in Clause 1 the customer may have to take care of it (at his own expense). Clause 9, on the other hand, provides for the defendant's right to exchange without the customer being obliged to bear the costs. If a contracting party has a right, it shall bear the costs of exercising it, provided that no costs are to be borne by the contracting party. The "absence" of a cost bearing rule thus does not give rise to any ambiguity in this respect. A cost bearing by the customer does not result also with the most customer-hostile interpretation (RS0016590) of the clause required in the federation process. Even the most customer-unfriendly interpretation is still an interpretation, which is why it has to be based on §§ 914 f ABGB (P. Bydlinski, Thesen zur praktischen Handhabung des "Transparenzgebots" [§ 6 Abs 3 KSchG], JBl 2011, 141 [142]; cf also Koziol, Auslegung und Beurteilung der Sittenwidrigkeit von AGB-Klauseln im Verbandsprozess, RdW 2011, 67 [69]: Irrelevance of an interpretation that is so far removed from consideration according to the principles of § 914 ABGB). The fact that the subscriber (customer), if the defendant makes use of its right to exchange the smartcard provided to the subscriber and/or the borrowed receivers, would have to bear any costs, is not only not apparent from the wording of the clause, but there is also no conceivable interpretation of the clause based on §§ 914 and 915 ABGB that would argue in favour of the customer bearing the costs. Contrary to the revision, the fact that the smartcard and terminal device are at the Customer's premises does not imply any obligation on the part of the Customer to send them to the Defendant or to bear the associated costs; the Defendant could also collect the Objects from the Customer.
Clause 11:
"If the Subscriber does not inform S***** of changes of address, notices shall be deemed received even if they have not actually been received by the Subscriber, if S***** has sent such notices to the address last notified by the Subscriber. In this case, delivery to an address within Austria on the 3rd working day from the date of dispatch shall be deemed to have been effected.".
The plaintiff argued that the clause satisfied the de facto transmission of a message. In the case of the most customer-hostile interpretation, the transmission is not to be equated with the access, which, however, must be proven by the entrepreneur in order to be able to make use of the access fiction of § 6 Para. 1 No. 3 KSchG. In addition, the stipulation that delivery to an address within Austria on the third working day from the date of dispatch is in any event effected does not comply with the requirements of § 6 (1) 3 KSchG. Moreover, the clause is grossly disadvantageous within the meaning of § 879 (3) ABGB, since according to it, for example, in the event of loss of the document to be served by post, service would be effected on the third working day from the date of dispatch, for which no objective justification is apparent.
The defendant contested and replied that, according to "Duden", transmission is to be understood as "passing something on to someone" or "receiving something". The wording of the clause alone therefore indicated that transmission was to be understood as the dispatch together with the receipt of a communication.
The court of first instance qualified the clause both as a violation of § 6 para. 1 no. 3 KSchG and as grossly discriminatory within the meaning of § 879 para. 3 ABGB. According to its wording, the fiction of receipt takes effect three working days after dispatch by the defendant, irrespective of how long the postal delivery took and whether the item could ever be delivered at all to the last known address. However, the idea behind § 6 para 1 no. 3 KSchG - as well as the reception theory in general - was that the item came under the control of the addressee and that he could at least gain knowledge of the content. This was also assumed in the case of a change of residence, but was not guaranteed if access to the old address was not even required. Only the step "delivery - access recipient" is faked, not the upstream step "task consignor - delivery". The purpose of § 6 (1) item 3 KSchG was to prevent the risk of access to company declarations from being passed on to the consumer.
The Court of Appeal confirmed the violation of § 6 para. 1 no. 3 KSchG. Accordingly, such contractual provisions within the meaning of § 879 ABGB are in any case not binding, according to which a legally significant declaration of the trader, which has not been received by the consumer, is deemed to have been received by him, unless it concerns the validity of a declaration "sent" to the consumer's last known address in the event that the consumer has not notified the trader of a change of address. The Oberster Gerichtshof interprets that provision as meaning that the fiction of service presupposes that the trader can prove service at the last known address. The prohibition of fictional access also relates to the question of the time of access. If the clause makes the fiction of access conditional on the defendant "transmitting" the communication to the latter address and if the date of service is fictitious with the third working day "from the date of dispatch", the defendant, at least in the case of the most anti-customer interpretation, must prove only that the document was dispatched and not that it was received at the indicated address in order to be able to rely on access to the document vis-à-vis its customers.
In its appeal, the defendant maintains its position that the clause covers only those cases in which the postal item has come within the subscriber's sphere of influence and has thus been delivered to him.
This is to be explained:
Synonyms of "transmit" are "send" and "send" (Duden, Bedeutungswörterbuch4 954). The most customer-unfriendly interpretation (RS0016590) offered in the association process is therefore based on the assumption that transmission here merely means "sending", especially as the defendant in its clause does not refer to the receipt of its communication at the last known address, but to the mere elapse of a certain period of time from the date of dispatch. The fact that on the basis of this - as explained by the Court of Appeal - a violation of § 6 para. 1 no. 3 KSchG is present according to the case-law, does not cast doubt on the defendant in the appeal.
Clause 12:
"The unsolicited return of a smartcard or a loan receiver during a valid subscription does not release the subscriber from the obligation to pay the contractually agreed monthly fees. This does not apply to the timely exercise of the statutory right of revocation".
The plaintiff argued that the clause was grossly disadvantageous in the sense of § 879 (3) ABGB according to the most customer-hostile interpretation. She spoke of an unsolicited return without differentiating according to its reason. However, such a return could also take place in the case of an extraordinary termination by the subscriber or in the case of disputed warranty defects. For these cases, the payment obligation would continue to exist inadmissibly according to the clause.
The defendant replied that this clause merely referred to the unjustified return of the smartcard or the receiver provided on loan during a valid subscription contract. Thus, the case of a return in the event of extraordinary termination by the consumer is not covered by it. In addition, the defendant lends the smartcards and the receivers to the consumer free of charge, so that the warranty rules do not apply and the case of warranty defects contested by the plaintiff cannot arise.
The court of first instance made the following further finding with regard to clause 8:
"In principle, return shipments are handled automatically by the defendant, so that any deviation or amendment of the clause would also have to result in changes in the technical processing area. Contract terminations are regulated in Section 9 of the GTC; Section 9.1. of the GTC as amended on 22. 2. 2016 and 2. 11. 2016 provides for a written form requirement for terminations by the customer".
The court of first instance ruled that the clause was legally admissible. It is in accordance with the termination provisions according to which termination by the customer must be made in writing, which can be permissibly agreed in accordance with § 6 para. 1 no. 4 KSchG. Since the clause expressly refers to a return "during an upright subscription", it also does not violate § 864 para 2 ABGB. The clause is to be understood as a mere indication that the factual (unsolicited) return of the equipment does not entail any legal consequences, but that notice of termination or warranty claims must be explicitly asserted.
The Court of Appeal confirmed this decision. Even in the case of the most customer-hostile interpretation, it could not be inferred from the clause that the customer would have to continue to pay the monthly fees despite a justified termination or the assertion of warranty claims. The clause merely draws the customer's attention to the fact that the unsolicited return of the devices "during an upright subscription" does not release him from his payment obligation, which corresponds to the dispositive legal situation.
In his appeal, the plaintiff upholds his legal standpoint and adds that the clause, in the case of the most customer-hostile interpretation offered, simply orders that in the event of any return that is not based on a request by the defendant, the fee should continue to be paid. Only the timely exercise of the statutory right of revocation is mentioned as an exception releasing the defendant from the obligation to pay. This was the only way to relieve the subscriber of the obligation to pay the contractually agreed monthly contributions in accordance with the clause. E contrario could be derived from this that in the cases in which a return takes place due to an extraordinary termination by the subscriber and/or in the case of disputed warranty defects, the customer is not released from the obligation to pay the agreed monthly premiums.
This is to be explained:
The revision of the plaintiff does not convince in this point. The clause alone regulates whether the unsolicited return of a smartcard or a loan receiver during a valid subscription releases the subscriber from his obligation to pay. It only stipulates that the return alone - with the exception mentioned in the clause - does not release the subscriber from the obligation to pay; in other words, that no explanatory value is attached to the return. Even in the case of the most customer-hostile interpretation, it cannot be inferred from the clause that any unsolicited return shall result in a payment obligation, even if this would otherwise be waived. If the return is made in connection with an expressly declared (justified) extraordinary termination (apart from the fact that it is then no longer a valid contract) or otherwise in a case in which the payment obligation does not apply (e.g. temporary price reduction due to necessary replacement of the defective device in the case of warranty), the payment obligation is not revived simply because the device is returned unsolicited. In all other respects, reference can be made to the relevant statements of the previous instances (§ 510 Paragraph 3 Sentence 2 ZPO).
Clause 13:
"Payments within the scope of the business relationship, in particular subscription fees as well as fees for downloaded paid program content within the scope of additional services, shall be made by credit card, PayPal or in the SEPA basic direct debit procedure.
The plaintiff argued that the restriction to the three payment methods mentioned above grossly discriminated against the subscriber within the meaning of § 879 (3) ABGB because it was not in the interest of a consumer that cash payments or credit transfers, i.e. everyday and customary payment methods, were completely excluded. According to the clause, for consumers who do not have a credit card and do not use PayPal, the SEPA direct debit procedure is de facto the only permissible method of payment. Even if the direct debit procedure brings numerous advantages in many cases, there can be no question that the exclusion of the payment method "transfer" in particular is absolutely customary in the industry.
The defendant replied that it was absolutely customary in the industry to exclude in particular the payment of subscription fees in cash, because this was not administratively possible with the large number of subscribers. The payment method generally preferred by consumers is direct debit. According to the decision 7 Ob 151/07t, which the plaintiff brought before the court, the consumer is grossly disadvantaged if the direct debit procedure is the only permissible method of payment, which is not the case here.
The first court made the following further findings on clause 13:
"In addition to the three common payment methods credit card, PayPal or SEPA basic direct debit, the defendant agrees on payments by bank transfer in individual cases. In the case of transfers by customers, however, there are often complications if the amounts transferred are too high or too low, which can set off a reminder run, but in any case leads to increased costs for all parties involved. Cash payments are difficult to administer for the defendant because the subscription fees are due monthly, not just marginally, and there are no paying agents such as business premises or shops".
Legally the first court judged the restriction to the three payment types as grossly disadvantageous in the sense of § 879 exp. 3 ABGB. A monthly cash payment for customers of an international pay-TV provider is not a common instrument and would entail a disproportionate effort for the defendant. However, it was not understandable why customers were not granted the possibility of a transfer, as this was no more or less error-prone than a payment via PayPal. According to the clause, the customer must either have a credit card or a PayPal account, which not everyone has or wants due to the costs and risks of cashless payment transactions, or allow the defendant to collect the money. If the defendant debits the amount by direct debit or credit card, there is also the risk that the customer will find himself in a worse position when asserting claims, because he will have to reclaim amounts that have been wrongly collected and will not be able to refrain from making a transfer if, in his view, the instructions are incorrect.
The Court of Appeal confirmed this assessment. The Supreme Court had already ruled that it was gross discrimination if the direct debit procedure was agreed as the only permissible method of payment. It is contrary to the interests of the consumer if cash payments or credit transfers are completely excluded as everyday and customary methods of payment and he is "compulsorily satisfied" with the fundamental advantages of the direct debit procedure. Here, customers would be offered a choice of three payment methods, but the clause would exclude bank transfers, although this was a widespread payment method. This means for the customer that he can only make use of the defendant's services if he either grants the defendant or at least the PayPal provider the right to dispose of his account or accepts the costs associated with a credit card contract. This disadvantages the customer considerably and is also not justified by the fact that bank transfers can occasionally result in incorrect bookings. Since the bank transfer is a customary and generally accepted method of payment, its exclusion in the context of general terms and conditions or contract forms is grossly disadvantageous within the meaning of § 879 (3) ABGB.
In its appeal, the defendant argues that the established susceptibility of bank transfers to errors often led to disadvantages for customers, for example by initiating the dunning run. The clause tries to counteract precisely these negative consequences for the consumer by excluding bank transfers in favour of the respective consumer. Furthermore, the decision 7 Ob 151/07t cited by the previous instances refers to cases in which the direct debit procedure is the only permissible method of payment, whereas here the consumer has three alternatives at his disposal. The SEPA Direct Debit Scheme offers consumers advantages over other payment methods offered, namely protection against missed deadlines, no risk of reminder fees due to late payment, a right to charge back the direct debit authorisation within the six-week objection period, no fixed amount and no bank charges for direct debit returns. It may be true that, in principle, bank transfers are a common and generally accepted method of payment; however, it is precisely in cases such as those in which the payment is not a one-off payment but is typically a monthly subscription, that the risk of transfer errors on the part of the consumer and the associated disadvantages for him is particularly high. In addition, payment by bank transfer would in fact not be possible, particularly in the case of pay-per-view offers. The viewer pays in advance for programmes which are "activated" by the defendant on a fixed date, such as live sports broadcasts. Payment by bank transfer would not be possible because the viewer would normally decide to take advantage of the offer shortly before the live broadcast.
This must be explained:
In 4 Ob 50/00g (= RS0113222), the Supreme Court stated that the direct debit authorisation procedure, especially as it in principle offers advantages to all parties involved, does not yet entail gross discrimination against a contractual partner even if the debtor has to pay a moderate payment slip fee ("cash surcharge") to compensate the creditor for the cost disadvantages associated with the non-granting of a direct debit authorisation.
With reference to this decision, the Supreme Court stated in 7 Ob 151/07t [on clause 7] that the consumer was grossly disadvantaged within the meaning of § 879 (3) ABGB if the direct debit procedure was to be the only permissible method of payment. It is in no way in the interest of a consumer that everyday and customary payment methods such as cash payment or bank transfer are completely excluded.
As in 7 Ob 151/07t, in the recent decision 1 Ob 124/18v [clause 5] the Supreme Court also had to rule on a clause which allowed direct debiting as the only method of payment. The Supreme Court stated that although direct debit may be agreed, this does not mean that the consumer may be cut off from another method of payment. § Paragraph 6a of the KSchG is intended only to guarantee the consumer the right to payment by bank transfer. According to dispositive law, different methods of payment could be agreed. If, from the outset, the GTC allowed only one particular method of payment, the clause did not comply with the dispositive law but restricted the consumer's legal possibilities in comparison; it thus deviated from the dispositive law. According to the case-law of the Supreme Court, a deviation from dispositive law could under certain circumstances constitute gross discrimination within the meaning of § 879 (3) ABGB if no objective justification could be found for it, but in any event if the legal position intended for the contractual partner was strikingly disproportionate to the comparable legal position of the other party. Even if it may be true that the direct debit procedure can be particularly advantageous for the consumer, the clause is grossly disadvantageous because it largely restricts his choice of payment method. The gross discrimination lies in the restriction of the choice.
The Senate has considered:
According to the provision of § 907a (1) sentence 1 ABGB inserted by the Default in Payment Act (BGBl I 2013/50), a monetary debt is to be fulfilled at the creditor's domicile or branch by transferring the monetary amount there or there or by transferring it to a bank account announced by the creditor. The debtor has the choice between the modalities cash payment and transfer (ExplanatoryRV 2111 BlgNR 24. GP 11; Bollenberger in KBB5 § 907a Rz 1). § 907a para. 1 sentence 1 ABGB is dispositive law (ExplanatoryRV 2111 BlgNR 24. GP 13; Kietaibl/Ladler in Kletečka/Schauer, ABGB-ON1.03 § 907a Rz 7, 18). He therefore basically permits the agreement that the debtor is only entitled to one or the other method of payment (Reischauer in Rummel, ABGB4 § 907a Rz 13). However, the parties are also free to agree on other methods of performance than those mentioned in paragraph 1, such as payment by credit card or by way of collection by the creditor (ExplanatoryRV 2111 BlgNR 24. GP 14; Kietaibl/Ladler aaO Rz 18; Stabentheiner in Fenyves/Kerschner/Vonkilch, Klang3 [ErgBd; 2017] § 907a Rz 35).
For the scope of application of § 1 KSchG, the provision of § 6a (1) sentence 1 KSchG, also inserted with the Default in Payment Act, stipulates that the entrepreneur must disclose a customary bank account to the consumer for the fulfilment of the consumer's monetary debt, unless the nature of the contractual relationship - such as contracts to be fulfilled concurrently - makes cash payment customary. The entrepreneur's obligation to disclose a customary bank account is intended to ensure that the consumer has the simple option of making a bank transfer in order to settle his money debt (Explanatory Order 2111 BlgNR 24. GP 32), i.e. to ensure that he has the option of § 907a ABGB (transfer of money or money transfer) (Kietaibl/Ladler aaO Rz 57).
However, this does not apply according to sentence 2 leg cit "if a certain other type of performance - for example by way of collection or by credit card - has been agreed". With this sentence, which was only inserted by him, the judicial committee wanted to make it clear "that contractual agreements on a different type of debt settlement than by bank transfer are still permissible, i.e. that in the business-consumer relationship, for example, settlement in the collection procedure or credit card payment can continue to be effectively agreed" (JAB 2178 BlgNR 24. GP 2).
In the disputed area of pay-TV it is obvious that cash payment is not customary. The defendant would therefore be obliged under § 6a (1) sentence 1 KSchG in principle to designate a bank account to its customers in order to guarantee them the option of § 907a ABGB (transfer or transfer). However, this does not apply "if a certain other type of performance - for example by way of collection or by credit card - has been agreed".
In the case of a (valid) agreement within the meaning of § 6a (1) sentence 2 KSchG, it is therefore permissible if the entrepreneur does not give the consumer the opportunity to settle his debt by bank transfer; in the case of such an agreement, he has no obligation to disclose a bank account to the consumer (Kietaibl/Ladler aaO Rz 57). Thus, the invalidity of an agreement pursuant to § 6a para 1 sentence 2 KSchG cannot yet be inferred from the absence of the possibility of bank transfer. Otherwise a circular agreement would exist: The invalidity of an agreement within the meaning of § 6a (1) sentence 2 KSchG was justified by the lack of the possibility of a transfer, although the legislator exempts the entrepreneur from the obligation to disclose an account for the purpose of transferring money, if a valid agreement within the meaning of § 6a (1) sentence 2 KSchG exists.
The invalidity of an agreement within the meaning of § 6a (1) sentence 2 KSchG can therefore only be derived from aspects other than the absence of a transfer option.
In all of this, however, the legislator presumed the existence of a target obligation. Here, on the other hand, there is a continuous obligation relationship in which the amount of the debt to be settled by the consumer fluctuates regularly depending on the consumption of other consignments not included in the agreed normal offer. Especially in such a case, the automatic collection of the (merely) payment owed by the consumer from the defendant's point of view is accompanied by a considerable disadvantage for the consumer, especially since it is up to the consumer to become active if the collection is too high and to demand repayment in due time. Even if the credit card details are deposited, this burden lies with the consumer, without him being able to assess the amount of his debt himself before payment. In addition, the payment option using "PayPal" is less common compared to the established bank transfer institute. Consumers who have no experience with this, who do not want to set up another account by disclosing their data and therefore shy away from this new payment option are in effect forced to accept direct debits from their account - whether by SEPA direct debit or credit card. The clause is grossly disadvantageous for the consumer - irrespective of the fact that he does not have a single payment method as in 7 Ob 151/07t and 1 Ob 124/18v.
To clause 14:
"The collection of charges in the SEPA basic direct debit scheme takes place at least once a month at the beginning of the following month. For direct debits in the SEPA Basic Direct Debit Scheme, S***** can notify the account holder of the direct debit with a shortened notice period of at least 5 days. If a direct debit is recalled due to circumstances for which the subscriber is responsible, S***** shall be entitled to charge the subscriber a processing fee of € 10.00 per chargeback and to charge the processing costs prescribed by Bank S*****.".
The plaintiff complained that the clause was non-transparent because it left open exactly when which amounts would be debited and it was unclear what exactly a "circumstance for which the subscriber is responsible", a "recall of the direct debit" and the term "charge" meant. The clause also grants the defendant the right to collect charges from the consumer's account which are not specified in more detail as often as he wishes within one month and is therefore grossly discriminatory within the meaning of § 879 (3) ABGB. Also, the processing fee of EUR 10 was a lump-sum compensation, which, however, was out of proportion to the actual expense.
The defendant contested and objected that the clause described the time of the direct debit as precisely as possible. It merely stated that the monthly subscription fee would be debited in the following month and that any additional charges for "pay-per-view" services used by consumers, for example, could also be debited separately. The phrase "circumstances for which the consumer is responsible" implies that a processing fee may only be levied if the consumer is at fault. The processing fee of EUR 10 was proportionate to the actual expenditure.
The court of first instance made the following further findings on clause 14:
"In addition to the subscription fee, there are other amounts which can be charged to the customer, such as one-off activation fees or logistics flat rates, as well as fees for additional services such as separately chargeable 'pay per view' content; these may be due at different times and therefore collected differently. In the case of a return debit note, the case must be processed manually by the defendant, whereby it is not possible to determine what specific effort this would entail. In this case, the defendant does not de facto charge a processing fee, but only a reminder fee (if any), which also amounts to 10 EUR per reminder. The dunning process at the defendant's is very complex and is basically handled in a standardised way using computer technology. Different customer groups are defined in the defendant's system, to which the dunning notices are matched. These reminders are generally filled and sent automatically by the system, for which the reminder costs stored in the system are also calculated. If this is not possible, for example due to system errors, the dunning notices must be processed manually. If the rules on dunning charges are changed, the technical process in the system would also have to be changed."
Legally, the court of first instance judged the clause to be intransparent and grossly disadvantageous. The first court referred to its comments on clause 6 and to the fact that, according to the Supreme Court's case law, the determination of a minimum amount of damages to be paid, irrespective of whether any expenditure was incurred at all, was grossly disadvantageous within the meaning of § 879 (3) ABGB. The collection of a lump sum of EUR 10 plus any bank charges provided for here in each case is therefore inadmissible. Whether these charges would actually be prescribed in reality was irrelevant in the association's proceedings. Furthermore, the court of first instance referred to its considerations regarding clause 8; because a "circumstance to be represented" could be something other than a "culpable" one and the conditions for the obligation to pay damages were not clearly defined, the clause was intransparent or grossly disadvantageous if damages were to be paid through no fault of its own. If the interpretation is most hostile to the customer, the clause also grants the defendant the right to divide the confiscation arbitrarily without objective reasons. This could put the customer at a disadvantage, for example if he paid account maintenance fees per transaction or transaction line.
The Court of Appeal confirmed this decision. It countered the defendant's justification in the appeal for the right to multiple debits, the fees being due at different times, by arguing that the clause was nevertheless grossly disadvantageous because the defendant thereby claimed the right to collect the fees owed by its customer in partial amounts both immediately after the due date and "at the beginning of the following month". This could not only cause unnecessary account maintenance fees but also make it considerably more difficult for the consumer to check the debits. The clause is also grossly discriminatory because, in addition to the flat-rate processing fee, the consumer is also required to reimburse the processing costs prescribed by "the bank" to the defendant following a revocation of the direct debit for which he is responsible. The amount and justification of these prescriptions were not foreseeable for the consumer. If the court of first instance also qualified the clause as intransparent because it was based on "circumstances for which subscribers were responsible" without pointing out that this obligation to pay could only exist in the event of fault on the part of the consumer, this corresponded to the case-law of the Supreme Court.
In its appeal, the defendant states that because the fees listed in the findings of the court of first instance are due at different times, they must be collected "at least once a month". It was also objectively justified that the customers had to pay the processing costs which the bank prescribed to the defendants. It could not be expected of the defendant that it would have to make this effort even though the chargebacks were the responsibility of the respective customer. For a consumer with average intelligence, it is also clear that a "circumstance for which the subscriber is responsible" refers to his "culpable conduct".
This must be explained:
It should first be pointed out that the classification of a clause as independent within the meaning of § 6 KSchG is not determined by the structure of the clauses. Rather, two (or even more) independent provisions may be contained in one point or even in one sentence of the General Terms and Conditions. It depends on whether there is a materially independent area of regulation. This is the case if the provisions can be perceived in isolation from each other (6 Ob 140/06s mwN).
In this sense, Clause 14 contains three independent provisions, on the one hand those on the time or frequency of collection (sentence 1), on the other hand those on the notification of direct debit with a shortened notice period for bank debits in the SEPA basic direct debit procedure (sentence 2), and finally those on a processing fee and the settlement of a processing fee (sentence 3).
With regard to sentence 3 of the clause, the defendant ignores the fact that it is then sufficient for the bank to require the defendant to pay a processing fee in order to oblige the customer to reimburse this expense. Even in the case of exorbitant workload prescribed by the bank to the defendant, the customer would still be obliged to pay compensation for the most customer-unfriendly interpretation (RS0016590) offered in the association proceedings, which makes the provision under sentence 3 grossly disadvantageous. The granting of the action in respect of this provision therefore proves to be correct in any event.
The same applies to the provision in sentence 1 of the clause. This is already intransparent because it does not make it clear under which conditions, in addition to the collection at the beginning of the next month, further collections could take place. This, however, leaves the consumer unclear about a very important aspect, namely how often he must expect the defendant to collect money from his account (see RS0037107 [T3]; RS0115217 [T8, T41]).
The defendant does not deal with the regulation of sentence 2 in its revision, which is why its plea in law is not legally implemented on this point.
Clause 15:
"S***** shall charge the subscriber the incurred, necessary, expedient and reasonable expenses in accordance with the statutory provisions for reminders due to late payment. Notwithstanding the foregoing, the Subscriber undertakes to reimburse the costs necessary for the appropriate collection or collection if the outstanding fees are collected by a debt collection agency commissioned by S***** or a lawyer.".
The plaintiff objected to the clause as grossly disadvantageous within the meaning of § 879 (3) ABGB. It contradicted the requirements of § 1333 para 2 ABGB, according to which only the necessary costs of appropriate extrajudicial debt collection and collection measures in the event of default in payment could be demanded, which would be in a reasonable proportion to the capital claim. According to the clause, however, the dunning costs should be due regardless of whether the consumer was to blame for the specific delay in payment. In addition, there is no indication that the dunning charges must be in reasonable proportion to the principal claim. The reference to the fact that the charges would be charged in accordance with the statutory provisions could be understood by the consumer as a mere reference to the approaches of the Regulation on the maximum rates of remunerations due to collection agencies (BGBl 1996/141), even without any fault on the part of the consumer. The fact that the defendant deliberately wished to deviate from § 1333 (2) ABGB also resulted from the fact that in clause 21, in contrast to the clause in question, it expressly referred to fault on the part of the subscriber in the event of late payment. Moreover, the clause conceals the true legal position of the customer and is therefore intransparent within the meaning of § 6 (3) KSchG.
The defendant replies that the alleged violations of the law do not exist because the clause expressly points out that the incurred, necessary, expedient and reasonable expenses may only be charged "in accordance with the statutory provisions". The defendant is therefore not entitled to claim expenses in the absence of fault on the part of the consumer. A comparison with Clause 21 would not lead to any other conclusion, either, because the fault of the consumer was mentioned there, but in contrast to the clause at issue, no reference was made to the statutory provisions.
With reference to the plaintiff's legal argument, which it supported, the court of first instance affirmed the gross discrimination of the clause within the meaning of § 879 (3) ABGB on the grounds of contradiction to § 1333 (2) ABGB. If the defendant in any case wanted to comply with its requirements (culpa in contrahendo, appropriate relationship to the capital claim), this would not be discernible to the customer from the mere reference to "statutory provisions" and the additional sentence "notwithstanding", so that he would also be deceived by the wording of the clause about the true legal situation within the meaning of § 6 (3) of the Austrian Consumer Protection Act, especially since clause 21 expressly refers to culpa in contrahendo.
The Court of Appeal confirmed this decision. Pursuant to § 1333 (2) ABGB, the creditor may also claim "compensation for other damages caused by the debtor and incurred by him, in particular the necessary costs of out-of-court debt collection or recovery measures in accordance with the intended purpose, insofar as these are in a reasonable proportion to the claim asserted". The clause clearly goes beyond these "statutory provisions", because the defendant "notwithstanding" claims compensation for extrajudicial collection costs even in the case of unindebted default and irrespective of the existence of an appropriate relationship to the claim asserted. This objectively unjustified deviation from the dispositive law was a gross discrimination according to § 879 (3) ABGB. An understanding of the clause as a mere reference to the statutory provisions would lead to its lack of transparency under Section 6 (3) of the Austrian Consumer Protection Act, because the reference to "statutory provisions" which are not specified in more detail would only convey the consumer's legal position unclearly. The present clause is thus inadmissible in any case.
In its revision, the defendant upholds its legal position against the accusation of gross discrimination. Nor was there any lack of transparency, because for a consumer with average intelligence it is clear from the reference to the "statutory provisions" that the clause refers exclusively to a delay in payment for which he is responsible.
This must be explained:
Sentence 1 of the clause obliges the customer to pay "the incurred, necessary, expedient and reasonable expenses in accordance with the statutory provisions" for reminders due to late payment. If reference is made in a cost rule such as this to "statutory provisions" which are not specified in more detail, the legal position of the consumer - as already recognised by the previous instances - is only unclearly communicated to the consumer, so that there is a violation of § 6 para 3 KSchG (6 Ob 140/18h [Punkt 3.4.]). Sentence 2 of the clause links to sentence 1 through the words "irrespective of", so that both sentences form a unit. The granting of the action in respect of the entire clause therefore proves to be correct in any event.
Clause 16:
"The subscriber is entitled, in the event of a complete or partial failure of the programme, to reduce the subscription fees proportionately according to the severity of the disruption. Such a reduction shall be excluded if the programme failure is only minor in relation to the overall performance or if it is caused by a software update in accordance with Section 1.2.7 on the digital receiver and/or the smartcard, provided that the receivers are provided by S*****.".
The plaintiff argued that the clause violated § 9 KSchG, according to which statutory warranty remedies of the consumer may not be excluded prior to knowledge of the defect. The statutory warranty provisions of §§ 922 et seq. of the Austrian Civil Code (ABGB) do not state that no warranty can be claimed for minor defects. By excluding the warranty in the case of minor defects, the clause is also grossly disadvantageous within the meaning of § 879 (3) ABGB. In the case of a software update, the subscriber's warranty for the program failure is excluded in all other respects, without any insignificance being important here; if the clause is interpreted in the most customer-hostile way, such a program failure could also be longer. Since it was unclear what exactly "minor" meant, how often software updates were carried out and how long the resulting program failures could last, and because the clause obscured the true legal situation for the customer, it also contradicted the transparency requirement of § 6 (3) KSchG.
The defendant argued that its services were based on complex, highly technical processes that depended indispensably on conditions that could not be influenced, such as satellites and weather, so that minor failures were unavoidable. The availability of the defendant's programmes is 99.9995% annually. In relation to the total annual performance, a loss of performance of no more than 0.0005 % was in any event negligible. An average consumer is aware that it can only be a disturbance which is not significant in relation to the total service and that a minor loss can only be a few hours per year. The restriction with regard to program failures during software updates was objectively justified by their unavoidability. Therefore, the clause does not impose an inadmissible limitation of warranty rights beyond what is necessary and is not intransparent either.
The court of first instance made the following further determination regarding clause 16:
"The availability of the plaintiff's programs amounts to 99.95-100%; program failures occur if they do occur, then only for a few hours.
The court of first instance legally explained that the clause, according to its wording, excludes any warranty in the event of a software update, regardless of how long such a software update lasts or how often it occurs and in what proportion the resulting failure is to the overall performance, which is why it is grossly disadvantageous within the meaning of § 879 (3) ABGB or violates § 9 KSchG. Software updates that were solely in the defendant's interest were also conceivable. Furthermore, the wording "program failure in relation to overall performance" was intransparent within the meaning of § 6 (3) KSchG because it was not clear, in particular, whether this referred to the programs or program packages specifically purchased by the customer or the overall offer of the defendant.
The Court of Appeal dismissed the defendant's legal complaint. According to the clause, the customer could not assert any claims even if he could not receive a program for several weeks due to a failed software update. The exclusion of warranty in the event that the program failure is only minor in relation to the overall performance is also a restriction of the consumer's warranty rights under Sections 922 to 933 ABGB, especially as Section 932 (4) ABGB expressly provides for a right to a price reduction even for minor defects. The clause therefore infringes § 9 (1) KSchG.
In its appeal, the defendant states with reference to the first-instance decision that every average customer had to reckon with the fact that, under certain circumstances, due to the necessary software updates which could not be avoided by the defendant, minor program failures could occur which did not entitle the defendant to a reduction in the subscription fee. The admissibility of a reduction in remuneration on the basis of any program failure, however minimal, would be economically unreasonable for the defendant.
This must be explained:
The appeal has not been carried out in accordance with the law because the clause permits a reduction both in the case of update-related disturbances and in the case of relatively minor disturbances (and not only in the case of coincidence of the two conditions), which is why the appellant does not respond to the reasoning of the Court of Appeal. Insofar as the appellant should refer to the fact that insignificant or insignificant defects ("blemishes", RS0018653) are also covered by the applicable warranty law (notwithstanding the elimination of § 932 para. 2 ABGB aF, see Zöchling-Jud in Kletečka/Schauer, ABGB-ON1.02 § 932 Rz 64), the clause is intransparent to the extent that it does not make clear when the program failure is so minor in relation to the overall performance that an insignificance could be assumed. A mere "insignificance" does not in any case - as can be seen from § 932 (4) ABGB - lead to the loss of warranty, but merely excludes a conversion. The 99.95% availability of the defendant's services determined is insignificant for the very reason that in the association proceedings in the most customer-hostile sense (RS0016590) without regard to the actual handling (RS0121943) is to be examined.
Even if this was not addressed in the proceedings, the first sentence of the clause generally refers the customer to a price reduction and excludes a conversion even under the conditions of § 932 (4) ABGB, so that a violation of § 9 KSchG also exists in this respect.
Clause 17:
"S***** shall not be liable for program failures and interruptions of broadcasting programs which the subscriber obtains free of charge within the framework of the 'Austria activation' (Section 1.1.9).
The plaintiff argued that the clause excludes the defendant's liability contrary to § 6 (1) 9 of the Austrian Consumer Protection Act, since it contains an inadmissible general exclusion of liability. It was also invalid pursuant to § 879 (3) ABGB because it was not objectively justified and therefore grossly disadvantageous if claims for damages were excluded. The "Österreich Freischaltung" could not be described as free of charge, since it presupposed the relationship of a paid S***** subscription. In the case of the most customer-hostile interpretation, the clause was intended to restrict or exclude warranty rights, which also constituted an infringement of § 9 (1) KSchG. In addition, the clause is intransparent within the meaning of § 6 (3) KSchG, since the consumer is concealed from the applicable legal situation and the impression is created that the clause excludes rights to which the consumer is legally entitled.
The defendant argued that it provided the "Österreich Freischaltung" free of charge. The fact that the existence of a subscription was a prerequisite for this did not change anything, since there was no obligation on the defendant to activate the "Austria programmes". Due to the fact that it was free of charge, the warranty law was not applicable and there was also no inadmissible exclusion of liability. The clause is transparent, because the legal situation is recognisable to the consumer and does not remain hidden, and does not grossly disadvantage the consumer, because the activation takes place free of charge.
The court of first instance made the following further findings on clause 17:
"The defendant has a contractual agreement with the ORF or the Austrian private TV providers according to which their programmes can be received by the defendant's customers via the S***** smartcard if they are activated accordingly by the defendant free of charge, so that the customers do not need an additional DVBT box or the like. Any interference with these unlocked channels will therefore be passed on 1:1 by the defendant. If the clause is amended, the defendant may have to renegotiate its contractual agreements with the other providers".
The court of first instance explained legally that the clause, according to its clear wording, is not based on a disturbance of the activation carried out by the defendant, but on disturbances or failures of the activated programmes of third party providers over which it has no influence. Since it does not charge any fee for that either, those programmes are not part of its promise of performance, so that the exclusion of liability is permissible.
The Court of Appeal did not follow the plaintiff's appeal. It additionally referred to point 1.1.9 of the defendant's general terms and conditions ("During the term of the subscription, the subscriber is entitled at any time to have his smartcard activated free of charge for the reception of encrypted, digitally broadcast, free radio channels (e.g. ORF, ATV), insofar as this is possible via the technical platform of S***** and the legal prerequisites for this are fulfilled (hereinafter 'Austrian activation'). S***** has no obligation to ensure the reception of these channels or to ensure the reception in any form whatsoever") and concluded from this that the defendant undertakes vis-à-vis its subscribers to "activate" these programmes, but of course cannot assume any liability for the actually interference-free transmission of the programmes. The exclusion of liability contained in the clause for "programme failures and malfunctions of broadcasting programmes" accordingly concerned programmes broadcast by third parties and not covered by the defendant's promise of performance. As a result, the exclusion of liability did not violate either § 6 (1) 9 KSchG or § 9 KSchG and was also not grossly disadvantageous or intransparent.
In his appeal, the plaintiff considers the assessments of the lower courts to be erroneous in law, because they overlook the fact that the provision of the "Austria activation" is by no means to be regarded as free of charge, since it presupposes the purchase of a subscription with costs from the defendant. Anyone who does not make these payments to the defendant within the framework of a subscription does not benefit at all from the activation of those programmes which are the subject of the clause. The services relating to the purchase of those programmes are thus part of the defendant's promise to pay, even if no separate charge is made for those programmes. On the contrary, the purchase of those programmes was covered by the subscription price to be paid to the defendant. The warranty rules were thus applied. The wording of the clause, which is decisive in the proceedings before the Association, is based purely on the reception of those channels without differentiating on the basis of the reasons why problems or failures may arise in the reception of those channels. According to the most customer-hostile interpretation of the clause, the "programme failures and disturbances of broadcasting programmes" regulated in the clause could also be caused, for example, by a technical disturbance which lies within the sphere of the defendant and which prevents the transmission of the signal; the same applied to a release which was not effected through the fault of the defendant. Therefore, failures and malfunctions over which the defendant has influence may very well occur, which is why the exclusion of liability and warranty is inadmissible irrespective of the fact that the defendant did not create the original signal of these programs.
This is to be explained:
The contractual relationship between the defendant and its customers is of a remunerated nature. Even if no (further) payment is provided for the "Austria activation" as a service of the defendant, the defendant nevertheless provides this service within the framework of the contractual relationship against payment and not out of altruistic generosity. The service "Österreich Freischaltung" (Austria activation) will be compensated with the fee to be paid by the customer, according to whatever parameters the resulting amount may be. The service "Austria activation" of the defendant is thus subject to the warranty regulations due to its (co-)remuneration.
It is undisputed between the parties that the defendant is not liable if a channel covered by the "Austria Activation" cannot be received due to a circumstance for which the third-party channel provider concerned is responsible, such as the fact that the channel provider cannot transmit due to a technical defect. However, as the plaintiff has reason to point out in his appeal, the program failure can also be caused by the fact that the third-party channel provider transmits its program but, due to a technical defect in the area of the defendant alone, it is not forwarded to its customers. In the case of the most customer-hostile interpretation, a customer has no warranty claims against the defendant according to the clause, even in the case of such a program failure. The clause thus violates § 9 para 1 KSchG, according to which the consumer's warranty rights (§§ 922 to 933 ABGB) cannot be excluded or limited prior to knowledge of the defect. For this reason alone, the plaintiff's request for injunctive relief in respect of the clause proves to be justified; the plaintiff's appeal was therefore to be followed.
Clause 18:
"The personal data provided by the subscriber as well as data on the type and frequency of his use of the services provided by S***** shall be collected, stored, used by S***** - insofar as this is necessary for the processing of the subscriptions, for the provision of the customer service as well as for the invoicing of payments - and transmitted to commissioned companies for the purposes of order data processing pursuant to § 11 Data Protection Act 2000.
The plaintiff argued that, contrary to § 4 DSG, the consumer would be left in the dark as to which
- The Commission considers that the clause is intransparent within the meaning of Section 6(3) of the Consumer Protection Act (KSchG). The subscriber is also not informed that he can prohibit the further use of his data at any time; he is not informed of the right of withdrawal enshrined in § 8 para 1 no. 2 DSG. The clause gives the wrong impression that the company is entitled to use its customer's data as regulated in the clauses for the entire duration of the contractual relationship and is therefore non-transparent within the meaning of § 6 (3) KSchG.
The defendant replied that the provision provides the consumer with comprehensive information on the possible use of his data. The data mentioned in the clause are absolutely necessary for the provision of the service by the defendant, the collection and transfer of which serves exclusively to guarantee the best possible customer service. The defendant is entitled, pursuant to § 10 (1) DSG 2000, to make use of service providers for its data application. An obligation to inform the consumer of these service providers could not be derived from § 4 DSG 2000. The clause therefore complied with the provisions of the DSG and was not intransparent.
The court of first instance stated that in connection with clauses with which the customer consents to the use or disclosure of data, the Supreme Court had already repeatedly stated that effective consent could only be given if the data subject knew which of his data should be used for which purpose, that he had to be informed of an existing revocation possibility in order to give him an accurate and clear picture of his contractual position, and that the clause also had to clarify which specific data would be disclosed to which specific third party. The clause therefore infringes the DSG 2000, which is still applicable in this respect, and the transparency requirement of § 6 (3) KSchG.
The Court of Appeal followed the defendant's appeal and dismissed the action with regard to this clause. Due to the conclusion of the oral hearing of the first instance before 25 May 2018, the EU Data Protection Regulation (VO [EU] 2016/679) and the Data Protection Adaptation Act 2018, Federal Law Gazette I 2017/120, were not yet applicable. According to § 7 (1) DSG 2000, data may only be processed if the purpose and content of the data application do not violate the confidentiality interests of the data subjects worthy of protection. According to § 8 para 3 subparas 4 and 5 DSG 2000, confidentiality interests worthy of protection are not infringed in particular if the use of the data is necessary for the fulfilment of a contractual obligation between the client and the data subject or for the assertion or defence of legal claims. Accordingly, the defendant was in principle entitled to process customer data without requiring the consent of the data subjects in this respect. According to § 10 (1) DSG 2000, the defendant was entitled to make use of service providers for its data applications if they offered sufficient guarantees for the lawful and secure use of data, whereby § 11 DSG 2000 provided for special protection obligations for the service provider. The court of first instance had correctly stated that effective consent to the transmission of data must conclusively designate the types of data to be transmitted, their recipients and the purpose of transmission. According to § 4 no. 11 and 12 DSG 2000, however, the transfer of data between the client and the service provider does not constitute a transfer, but a mere "transfer" of data, which does not require the consent of the data subject within the scope of § 10 DSG. The clause thus corresponds to the legal situation applicable at the time. Since the permissibility of the data processing described in the clause was not dependent on the consent of the data subject, the defendant had also not had to point out the possibility of revoking consent pursuant to § 8 (1) 2 DSG 2000. Nor is the clause unclear or incomprehensible, which is why there was no breach of the requirement of transparency. Since there was no infringement compared to the legal situation applicable at the time, it was not necessary to examine whether the clause contradicted the current new legal situation, because it could not be assumed without further ado that the defendant would not be subject to any significant change in the legal situation. Thus, even if the legal situation were to change, no risk of repetition could be assumed.
In his appeal, the plaintiff states that the clauses were not admissible under the legal situation prior to the DSGVO, while maintaining the legal arguments already put forward in the first instance. It was correct that according to § 8 para 3 subparas 4 and 5 DSG 2000, confidentiality interests worthy of protection were not infringed, in particular, if the use of the data was necessary for the fulfilment of a contractual obligation between the client and the party concerned or for the assertion or defence of legal claims. However, the clause regulates the transfer of data to third parties. The defendant could not invoke the exception of § 10 (1) DSG 2000 simply because the clause did not impose any restrictions on such third parties who offered a sufficient guarantee for the lawful and secure use of data; the requirements of § 11 DSG 2000 were also ignored. The wording of the clause "insofar as this is necessary for the processing of subscriptions, for the provision of customer service and for the settlement of remuneration" does not restrict the processing solely to those operations which would only be necessary for the fulfilment of the defendant's contractual obligations. The grounds of the Court of Appeal are too brief if it considers that consent is not necessary in the given context, since the justification for the performance of the contract exists. Even if this were the case, clear, transparent information would have to be provided as to which personal data would be processed or transmitted, and for what purposes, in order to fulfil the contract. In addition, in the case of the most customer-hostile interpretation, the clause is to be understood as meaning that the specific purposes of the fulfilment of the contract ("to the extent that this is necessary for the processing of the subscription, for the performance of the customer service and for the invoicing of remuneration") do not come into effect during the "transmission". According to the wording and the wording of the clause, the purposes stated in the clause refer only to data processing by the defendant itself and not to transmission to other companies. The clause therefore enables the defendant to transfer data to other companies without any purpose. Furthermore, the simple reference to the standard of § 11 DSG 2000, which is at least unknown to the consumer in detail, is not compatible with § 6 (3) KSchG. In order to make the clause transparent, it would have to be set out at least in broad outline under which conditions the disclosure of the data should be permissible according to this standard. According to the old legal situation (before the DSGVO), the clause was thus unlawful. The clause was also unlawful under the new legal situation (DSGVO), in particular it infringed Article 7 (3) of the DSGVO. In addition, the lack of transparency (§ 6 para 3 KSchG) also resulted from the infringement of Article 12 in conjunction with Article 13 DSGVO (information obligations). Contrary to Art 13 (1) (e) DSGVO, recipients or categories of recipients of personal data would not be named. The storage was also open in terms of time (Art 5 para. 1 lit e DSGVO) and thus unlawful.
This must be explained:
The plaintiff correctly states that the restriction "- insofar as this is necessary for the processing of subscriptions, for the provision of customer services and for the settlement of fees" refers grammatically solely to the data processing by the defendant itself and not to the transfer of data to other companies. With regard to the latter, the clause therefore only reads: "The personal data provided by the subscriber as well as data on the nature and frequency of his use of the services provided by S***** shall be transmitted by S***** [...] to commissioned companies for the purposes of order data processing in accordance with § 11 Data Protection Act 2000".
The clause thus enables the defendant to transmit data to other companies without any purpose limitation if the interpretation is most hostile to the customer (RS0016590), which grossly disadvantages the customer. In addition, the clause is intransparent because the meaning of the phrase "for purposes of order data processing in accordance with § 11 Data Protection Act 2000" remains in the dark for customers who are regularly not legally experienced. The clause is therefore inadmissible in any case, without the need for further discussion of the old or new data protection law. The plaintiff's revision therefore had to follow this point.
Clause 19:
"S***** may transmit electronic messages (in particular e-mail, SMS) to the subscriber for the purpose of informing him about offers from S***** in the pay-TV sector which are similar to the packages and/or channels already subscribed to by the subscriber. S***** will only transmit such messages if the subscriber has provided S***** with the relevant contact details (in particular e-mail address, telephone number) as part of the subscription. The subscriber may object to the transmission of such messages at any time in writing (post, fax, e-mail: infoservice@s*****.at). The subscriber will be informed of his right of revocation with each transmission of such messages".
The plaintiff argued that the clause contradicted § 107 (3) TKG because it granted the defendant the right to send electronic messages for the purpose of direct marketing even if the consumer had not been given a clear and unequivocal opportunity to reject such use of electronic contact information free of charge and without any problems when it was collected and additionally when it was transmitted, or even if the consumer had already rejected the sending of such messages from the outset. Furthermore, the clause establishes a formal requirement for the objection which does not comply with the law, since the written form requirement constitutes an impermissible barrier for filing the objection. Under Art. 107 Par. 3 TKG, consumers must be able to revoke their consent free of charge and without any problems. If, for example, the defendant sends electronic advertising via SMS, the revocation must also be possible via SMS. The clause therefore conceals the customer's true legal position and is therefore intransparent within the meaning of § 6 (3) KSchG. Whether the clause is handled in practice in such a way that the consumer has the option of refusing such contact information before concluding the contract is irrelevant, because it is not a question of practical handling that deviates from the wording of the clause.
The defendant replied that the clause complied with the provisions of § 107 TKG. When concluding the contract and thus when collecting his data, the consumer has the option of refusing from the outset to use his contact data for the transmission of electronic messages, in particular e-mail and SMS, for the purpose of providing information about the defendant's offers in the pay-TV sector, free of charge and without any problems. The fact that an objection was also possible at the time the consumer's data was collected was also apparent from the express wording of the clause according to which the consumer could object to the transmission of messages "at any time". In addition, as expressly stated in the clause, the customer is informed of his right of withdrawal each time messages are transmitted. In addition, he would be given several options for a free and trouble-free revocation (post, fax, e-mail). The written form requirement did not constitute an inadmissible barrier to the collection of the revocation, but was rather necessary for reasons of proof for both the consumer and the defendant. In addition, it is absolutely customary in the industry that there is no possibility of replying to automatically generated SMS messages. The clause therefore complies with the provisions of the TKG. It is not intransparent, because the legal situation is quite recognizable for a consumer with average intelligence due to the wording.
The court of first instance ruled that the clause was intransparent within the meaning of § 6 (3) of the Austrian Consumer Protection Act (KSchG) because there were no indications that no messages could be transmitted at all if the customer objected at the time of data collection and that a corresponding option was to be granted to him at this point in time (§ 107 (3) no. 3 first case TKG). Furthermore, it would be grossly disadvantageous or constitute a violation of § 107 Par. 3 No. 3 TKG ("problem-free") if the defendant used the form of communication SMS as an advertising medium but generally ruled out revocation by SMS. Even if a reply function were not technically feasible, a service number could be named in the SMS so that the customer could react immediately to the access with an objection without having to change the means of communication.
The Court of Appeal concurred with this assessment. It contradicted the basic idea of § 107 Paragraph 3 No. 3 TKG, according to which the consumer should be able to reject such messages "without any problems" if the entrepreneur excluded the very means of communication by which he transmits the messages to the consumer from the rejection. In principle, however, a strict standard should be applied here. The fact that the customer has several options for his objection by post, fax or e-mail is not sufficient, especially as the defendant can reach him via his mobile phone outside his home or workplace by SMS. In this situation, an objection by post, fax or e-mail was not "problem-free" within the meaning of § 107 (3) 3 TKG. The clause was thus unlawful.
In its appeal, the defendant states that every subscriber is already given the opportunity to object to the use of the data for the purpose of direct advertising when the data is collected. In any case, the objection possibilities provided by post, fax and e-mail enable customers to object "free of charge and without any problems" within the meaning of § 107 Par. 3 No. 1 TKG. The legal assessment of the Court of Appeal, according to which the defendant had to guarantee the possibility of objecting by setting up its own service number, was incorrect. On the one hand, the implementation of an own service number as a telephone objection possibility was economically unfeasible for the defendant, on the other hand, however, it was primarily associated with disadvantages for the consumer himself for reasons of proof.
This must be explained:
With regard to Clause 19 (as well as other subsequent clauses), it should be noted in advance that the applicability of the TKG 2003 to the defendant's services was not disputed, which is why it is not necessary to discuss this further (see, however, § 3 no. 9 TKG: "Communications service [...] including [...] transmission services in broadcasting networks").
Under Art. 107 Par. 2 TKG, electronic mail - including SMS - may not be sent without the recipient's prior consent if it is sent for direct marketing purposes. Under Art. 107 Par. 3 TKG, prior consent is not required for the sending of electronic mail pursuant to Par. 2 if the conditions specified in the following four digits are fulfilled. These conditions are cumulative (Steinmaurer in Stratil, TKG 20034 [2013] § 107 Anm 9). One of these prerequisites is that "the recipient has clearly and unambiguously been given the opportunity to refuse such use of electronic contact information free of charge and without any problems when it is collected and additionally during each transmission" (Art. 107 Par. 3 No. 3 TKG).
§ Art. 107 Par. 3 TKG implements Art. 13 Par. 2 of Directive 2002/58/EC of the European Parliament and of the Council of July 12, 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications; see VwGH 2008/03/0008). According to the Directive, "a natural or legal person who has received electronic contact information for electronic mail from its customers in connection with the sale of a product or service pursuant to Directive 95/46/EC may use such information for direct marketing of its own similar products or services, provided that customers are clearly and unambiguously given the opportunity to refuse such use of their electronic contact information free of charge and without any problems at the time of its collection and during each transmission, if the customer has not rejected such use from the outset". Article 13 (2) of the Directive is intended to protect the privacy of users in the electronic communications sector (BGH IV ZR 225/17 = NJW 2018, 3506 [Rz 15 mwN]). In view of this objective of the Directive, the exception in Art 13 (2) must be interpreted narrowly (Lettl, Gemeinschaftsrecht und neues UWG, WRP 2004, 1079 [1123]; Leible in Münchener Kommentar zum Lauterkeitsrecht2 [2014] § 7 UWG Rz 179). The correct equation of "problem-free" with "uncomplicated" in the literature (Riesz in Riesz/Schilchegger, TKG [2016] § 107 Rz 110) corresponds to this.
If a customer receives an advertising SMS from the defendant on his mobile phone, it is not uncomplicated for him in the sense of uncomplicated not to explain his objection in the same way - namely by SMS - but to first have to switch to another means of communication. Such a change is particularly problematic when the customer is on the move and only has his or her mobile phone at his or her disposal. It is not obvious that it would be technically impossible or economically unreasonable for the defendant to object by SMS. The previous instances have the lack of the possibility to explain the objection also by SMS, therefore correctly assessed as a violation of § 107 Par. 3 No. 3 TKG. The granting of the complaint with regard to clause 19 is not objectionable.
Clause 20:
"S***** shall have the right to terminate the subscription in respect of individual packages and/or channels with extraordinary notice of 14 days if S***** is no longer in a position to offer these packages and/or channels to the subscriber for licensing reasons (in particular in the event of loss of rights or the acquisition of new rights) and/or for technical reasons (in particular the discontinuation of cable transmission rights).
The plaintiff argued that the clause was grossly discriminatory under Section 879 (3) of the Austrian Civil Code (ABGB), since - in the sense of the most customer-hostile interpretation - it also included cases for which the company was responsible. It is conceivable, for example, that the defendant is not in a position to offer certain packages and/or channels due to technical reasons/disruptions which are solely attributable to its fault (e.g. due to maintenance work or software updates not carried out on time) or due to culpable violations of its obligations under the licence agreement with its licensors. In cases for which the defendant was responsible, an extraordinary termination was not objectively justified by the defendant. An extraordinary termination of entire programme packages or programme combinations was also neither objectively justified nor minor and therefore unreasonable, so that there was also an additional infringement of Section 6 (2) (3) of the Consumer Protection Act. A unilateral change in performance was only permissible if it was reasonable, i.e. if it was minor and objectively justified. In addition, the clause does not provide that the remuneration to be paid to the consumer is reduced if the defendant terminates individual packages and/or channels extraordinarily, so that for this reason, too, there is a gross discrimination within the meaning of § 879 (3) ABGB.
The defendant contested and argued that the reasons stated in the clause were outside its sphere of influence, which is why the extraordinary right of termination was objectively justified. In addition, the licensing and technical reasons cited also made it impossible to provide further services, which would inevitably lead to the termination of the contract, which would of course also result in a corresponding reduction up to the complete loss of the remuneration to be paid by the consumer. It could not be inferred from the clause that the subscription fee should continue to have to be paid for packages and/or channels which have already been extraordinarily terminated.
The court of first instance made the following further findings on clause 20:
"The defendant offers its content (programmes) on various programme channels; whether these can be decoded with its smart card depends on the programme package booked in each case (e.g. S***** Entertainment as a basic package, S***** Cinema, S***** Sport or S***** Football Bundesliga as extension packages [...]). It (or a group company) concludes licence agreements with film studios and in the sports sector for the design of its programme, for example, generally for four years each. In the case of exclusive sports broadcasts in particular, there are bidding rounds so that the defendant cannot secure broadcasting rights on a permanent basis. According to Section 10.1 of the General Terms and Conditions of 22 February and 2 November 2016 on 'Changes to General Terms and Conditions of Business and Fees' (not the subject of the action), the defendant is 'entitled to make minor changes in the content of the packages and/or channels as long as the overall character of the package and/or channel is retained and these changes are objectively justified, because - without S***** being able to make an accusation of this - licence agreements with third parties could not be extended and this change is reasonable for the subscriber'".
Legally, the court of first instance stated that the clause was so broadly worded by the demonstrative enumeration that, according to the wording, the customer had no entitlement to a reduction in remuneration or rights of termination if the defendant could no longer broadcast a channel that was part of a booked programme package due to a technical failure in its area or a breach of contract against its licensor. The clause thus, considered on its own, thus standardises a unilateral, not merely insignificant right of the defendant to change services, which contradicts § 6 para 2 subpara 3 KSchG and, in the absence of corresponding possibilities on the part of the customer, is also grossly disadvantageous within the meaning of § 879 para 3 ABGB. This inadmissibility was not remedied by clause 10.1 either, because the relationship between these two provisions or the legal consequences thereof remained completely open (no "technical reasons" were mentioned there either) and there was thus intransparency within the meaning of § 6 (3) of the Austrian Consumer Protection Act.
The court of appeal did not follow the defendant's appeal on this point. According to the clause, the right of termination also existed if the defendant
- for financial reasons, for example, did not make any effort to renew an existing license agreement or to resolve technical problems. Thus, the terminability of individual programmes or programme packages was at their discretion, which meant a violation of § 6 (2) 3 KSchG and a gross discrimination under § 879 (3) ABGB. In addition, the clause does not provide for a reduction in remuneration in the event of the termination of individual programmes or programme packages, whereby the consumer, in the case of the most customer-unfriendly interpretation, would pay the agreed remuneration in full, but could only receive part of the contractually agreed programme content, which would mean a gross disadvantage. The fact that the clause does not provide for a right of termination on the part of the customer in the event of the defendant terminating individual programmes or programme packages in return also constitutes gross discrimination, because the customer would remain bound by the contract even if the programme which had prompted him to conclude the subscription was subsequently terminated, as a result of which he would still have to pay for programme content in which he never had an interest. The fact that, in Clause 10.1, the defendant additionally claims the right to make minor changes to the content of the programme packages cannot alter the fact that the right of termination contained in the clause in question is grossly disadvantageous.
In its appeal, the defendant states that the clause grants an extraordinary termination of the subscription contract only in respect of those channels and programmes in respect of which the defendant has simply become impossible to provide services for the reasons stated. In such a case, there was an important reason for the premature partial termination of the contract and no unilateral change in performance within the meaning of § 6 (2) 3 KSchG. Furthermore, as is apparent from Clause 10.1, the clause in question should only cover those cases in which the defendant cannot be accused of not renewing the licence. The fact that in the event of extraordinary termination - which constitutes a termination of the contract - the consumer continues to have to pay fees for the terminated channels/programmes cannot be inferred from the clause. Furthermore, it refers only to the defendant's extraordinary right of termination and not to any separately existing right of termination on the part of the consumer with regard to the remaining channels or programmes.
This is to be explained:
With regard to the "licensing reasons", the clause demonstratively (argumento "in particular") mentions the loss of rights. This also occurs when a license expires. Even if the defendant has not sought a financially reasonable renewal of the license, it could, according to the wording of the clause, make use of its "extraordinary right of termination". In the case of the most customer-hostile interpretation (RS0016590), the clause is thus grossly disadvantageous for the customers, which is why the granting of the claim in this point proves to be correct in any case.
To clause 21:
"If the subscriber is in arrears with the payment of the subscription fees or with other payment obligations due to his own fault and not only slightly, S***** can withdraw the right to see until the complete payment of the open contributions or other payment obligations despite the continuation of the payment obligation and/or refuse the use of further services (e.g. S***** Select, chargeable S***** On Demand Program Content and 18+ Program Content). In addition to the right to withdraw visual entitlement, the right to extraordinary termination due to default in payment pursuant to Section 9.5 shall remain unaffected".
The plaintiff argued that the clause did not provide for any obligation on the part of the defendant to remind the customer prior to the withdrawal of visual entitlement and to set a grace period of at least two weeks, which is why it contradicted § 70 TKG. It also disguised the customer's true legal position and was therefore intransparent within the meaning of § 6 (3) KSchG.
The defendant replied that the clause implies a reminder with the setting of a two-week grace period by the defendant, in that it only provides that the right to see can be withdrawn in the event of a not insignificant delay in payment. For a customer with average intelligence, it was recognizable that a "not insignificant default in payment" probably only existed with a prior reminder including a grace period set by the defendant.
The court of first instance made the following further determination with regard to clause 21:
"In fact, the defendant implements the grace period, i.e. it would not have to change its system settings or reminder runs in this respect.
Legally, the court of first instance stated that § 70 TKG states that the operator of a communications service may only interrupt or switch off a service in the event of a subscriber's payment default if he had unsuccessfully dunned the subscriber beforehand, threatening to interrupt or switch off the service and setting a grace period of at least two weeks. For the total blocking of the service concerned, in which case the payment was late, the operator was entitled to agree an appropriate handling fee. The phrase "not only marginally in default of payment" did not satisfy these requirements.
The Court of Appeal confirmed this decision and additionally stated that § 70 TKG protects the customer from the fact that the telecommunications service
- in particular in the case of disputed invoices - without prior warning. Contrary to the defendant's legal view, the existence of a "not insignificant delay in payment" does not imply a reminder or a two-week extension period.
In its appeal, the defendant upholds its legal position.
This is to be explained:
The wording of the clause would give the defendant the right, in the event of default in payment, to withdraw the right of sight until full payment has been made and/or to refuse the use of further services, although according to § 70 TKG the operator of a communications service may only interrupt or switch off services in the event of default in payment by a subscriber if he has previously unsuccessfully reminded the subscriber, threatening to interrupt or switch off services and setting a grace period of at least two weeks. The clause does not require such a warning, not even implicitly. The lower courts therefore rightly affirmed a violation of § 70 TKG.
Clause 22:
"If S***** cancels the subscription extraordinarily either after setting a deadline for subsequent performance in the event of culpable default in payment or after issuing a corresponding warning in the event of other culpable breach of duty by the subscriber, the subscriber is obliged to pay a lump-sum compensation instead of the contractually agreed service. The amount of the compensation depends on the amount and number of subscription fees until the next possible termination date (e.g. ordinary termination date 31. 12.; extraordinary termination 31. 08.; duration until the next termination date would be 4 months: in this case the subscriber has to pay compensation in the amount of 4 times the agreed monthly subscription fee). After expiry of the minimum contract term, the amount of damages shall be limited to a monthly subscription fee.".
The plaintiff argued that the clause provides for 100% of the outstanding subscription fees as lump-sum damages. Because the defendant becomes performance-free by the extraordinary notice and saves thereby also expenditures for the achievement contribution, so at any rate costs of the customer administration and customer service, the clause however, without for it an objective justification is evident, does not provide that this saving is taken into account with the overall payment of the compensation, the clause is grossly disadvantaged in the sense of ? 879 exp. 3 ABGB. In addition, the planned extraordinary possibility of termination in the event of default of payment violates § 879 (3) ABGB and § 70 TKG, since no concrete deadline is specified for setting a deadline for subsequent performance, so that this deadline could be shorter than the deadline of at least two weeks provided for in § 70 TKG for the withdrawal of visual entitlement in the case of the most customer-hostile interpretation. Since the obligation to issue a qualified reminder including a grace period of at least two weeks applies to the switch-off in the event of late payment, this must also be binding for the termination of the contract due to late payment in a conclusion of magnitude, which can therefore only become effective once the requirements of § 70, first sentence, TKG have been met.
The defendant replied that the extraordinary termination of an individual subscription contract would not save it any fixed costs to be charged, so that the clause would not be grossly disadvantageous. The deadline for supplementary performance was at least two weeks, so that the clause did not violate § 70 TKG.
The court of first instance made the following further findings with regard to clause 23:
"The extraordinary termination of a contract with the defendant triggers a manual effort on the part of the defendant. It cannot be established that the defendant saves relevant fixed costs in relation to the subscription fee by terminating the contract before the end of the term. A significant cost factor for the defendant is the cost of the broadcasting rights, the programme design and the technical infrastructure. Since the amount of damages is calculated automatically by the system, this process would have to be technically changed if the clause were to be changed."
Legally, the court of first instance stated that the provision in § 70 TKG regarding the setting of a two-week grace period in the event of late payment was to be applied analogously to the case of termination due to late payment. Since the clause merely speaks of a "setting of a period of grace for subsequent performance" and the association proceedings do not depend on the factual handling, the clause is to be prohibited on the grounds of indivisibility.
The court of appeal did not follow the defendant's appeal. A termination of the contractual relationship also entailed a shutdown of the services, which is why § 70 TKG, according to the intention of the legislator, was also to be applied to terminations due to late payment (ErlRV 1389 BlgNR 24. GP 20). Thus also the notice of termination of the contractual relationship because of delay in payment requires the setting of a respite of two weeks (Bräuer in Riesz/Schilchegger, § 70 TKG Rz 15). With most customer-hostile interpretation the clause entitled the deplored one also then to the notice of the contractual relation because of delay in payment, if only a shorter than in ? 70 TKG provided two-week respite was set and no service disconnection was threatened, whereby it offends against ? 70 TKG.
In its appeal, the defendant alone states that "setting a deadline for subsequent performance" refers to a period corresponding to the requirements of § 70 TKG, which is why the clause could not have been objected to if the legal assessment had been correct.
This is to be explained:
The defendant's interpretation contradicts the most customer-hostile interpretation required in association proceedings (RS0016590). For the rest, reference can be made to the correct statements of the Court of Appeal (§ 510 para. 3 sentence 2 ZPO).
To clause 23:
"If S***** cancels the subscription extraordinarily due to a culpable delay in payment during the upright minimum contract term, S***** is entitled, in the case of a purchase of S***** receivers in accordance with Section 1.2.3, to withdraw from the purchase contract for the receiver and assert the right of ownership. If the Subscriber fails to comply with his obligation to return the receiver, the provisions of Clause 1.2.6 shall apply mutatis mutandis. Any purchase price already paid shall be set off against the usage fee or damages; if the purchase price exceeds the usage fee, it shall be set off against open subscription fees and other open amounts after return of the receiving device.".
The plaintiff argued that the clause was intransparent and therefore ineffective within the meaning of § 6 para 3 KSchG, as it refers to the inadmissible clauses 1.2.3 and 1.2.6 [= clauses 2 and 3 above; note]. The inadmissibility of the provisions to which reference is made necessarily leads to the inadmissibility of the referring provision.
The defendant contested the inadmissibility of the referred clauses.
The court of first instance agreed with the plaintiff's legal opinion.
The Court of Appeal did not follow the defendant's appeal. Clauses 2 and 3 were inadmissible for the reasons given. According to the case-law, the reference to inadmissible provisions resulted in the inadmissibility of the referring provision (RS0122040 [T4]), so that the present clause was also inadmissible.
In its appeal, the defendant considers the decision of the previous instances to be incorrect solely because clauses 2 and 3 are admissible if the legal assessment is correct.
This is to be explained:
On the assumption that clauses 2 and 3 are inadmissible, as already explained, the previous instances have also recognised the inadmissibility of the clause referring to them (§ 510 para. 3 sentence 2 ZPO). Therefore, the defendant's appeal could not be accepted on this point.
Clause 24:
"S***** shall have the right to increase the subscription fees contractually agreed with the subscriber accordingly if licence costs (in particular licence costs for the acquisition of premium sports rights, film rights or distribution rights for third channels) for the programme content broadcast under the subscription, externally caused technical costs (in particular cable transmission fees by cable network operators, increase in transponder costs for satellite distribution) or fees or taxes which affect the costs of broadcasting the programme content broadcast under the subscription increase. Such an increase must be notified to the subscriber in good time, but at least one month in advance. The scheme shall not apply during the first 2 months after the start of the contract (point 7)".
The plaintiff argued that the clause violated § 6 (1) (5) KSchG, as the relevant parameters for the fee change were not clearly comprehensible, as well as
- are at least in part - also not objectively justified, they are not given in the same way for both sides, since the clause does not provide for any obligation on the part of the defendant to reduce remuneration if the agreed conditions are met, and also the occurrence of most of the circumstances mentioned (in particular remuneration such as licence and technical costs paid by the defendant to third parties) is not independent of the will of the entrepreneur. The clause was also grossly discriminatory within the meaning of § 879 (3) ABGB (Austrian Civil Code), since for the most part there was no objective justification for the contractual amendments made apparent in the clause. In addition, there was a violation of § 6 para 2 no. 1 KSchG, since the effect of the entrepreneur could provoke the termination of the consumer through an unobjectively justified contract amendment. In addition, it is unclear which "charges" which could affect costs are meant by the clause, which is why it is also intransparent within the meaning of § 6 (3) KSchG.
The defendant replied that the right to increase the agreed subscription fees was objectively justified because the costs referred to in the clause (licence and technical costs, fees, taxes) were all outside its sphere of influence. It could provide its services in their entirety only if it used the services of third parties or transferred the rights of third parties. Clause 10.3 expressly states that in the event that the external technical and/or licensing costs, taxes and/or fees are reduced, the defendant shall pass on this reduction to the consumer accordingly in the form of a reduction of the subscription fees contractually agreed with him.
The court of first instance made the following further findings on clause 23:
"License costs for film and sports rights must be regularly renegotiated by the defendant and tend to rise, also through bidding rounds, although the defendant tries to keep them low. Technical costs are also rising, including fees for cable transmission and the use of satellites. Point 10.3. of the General Terms and Conditions of 22. 2. and 2. 11. 2016 states: 'If the external technical and/or licensing costs, taxes and/or fees referred to in point 10.2. are reduced, Sky will pass on this reduction accordingly to the subscriber in the form of a reduction in the subscription fees contractually agreed with the subscriber'.".
Legally, the court of first instance stated that the clause infringes § 6 para 1 no. 5 KSchG because the reasons for the fee increase stated in it are not "independent of the will of the entrepreneur", since the defendant negotiates its contracts with the right holders and technical service providers itself or has them negotiated by its group companies. Moreover, the reasons were not sufficiently clearly described in view of the merely demonstrative enumeration.
The Court of Appeal did not follow the defendant's appeal. The clause grants the defendant the right to adjust the remuneration if licence costs, externally caused technical costs or fees and taxes increase, which means a general clause-like rewriting of external cost factors. In the event that one of these parameters changes, the extent to which a fee increase is permissible is in no way specified. The clause thus infringed § 6 (1) 5 KSchG.
In its appeal, the defendant maintains that all the circumstances mentioned in the clause do not lie within its sphere of influence. For example, the defendant's hands were tied when increasing costs for the acquisition of film rights; this increase was not controllable for the defendant. The relevant facts which authorise the defendant to adjust the remuneration are described clearly and unambiguously, which is why there can be no question of a "general clause-like formulation". It is also clear from the clause that the subscription fee may have to be adjusted "accordingly" and thus in proportion to the increase in licence and technical costs, taxes or fees.
It must be explained in this connection:
According to Section 6 (1) 5 of the Consumer Protection Act, contract provisions within the meaning of Section 879 of the Austrian Civil Code are in any event not binding on the consumer under which "the entrepreneur is entitled to a higher fee for his service at his request than the fee determined when the contract was concluded, unless the contract also provides for a fee reduction if the agreed conditions for a fee change are met, the circumstances relevant to the fee change are described in the contract and objectively justified, and their occurrence does not depend on the will of the entrepreneur".
The occurrence of the factors specified in the contract must not be dependent on the will of the specific entrepreneur; it must not have any measurable influence on them. They must therefore come "from outside"; otherwise the circumstance is not "objectively justified" within the meaning of § 6 para 1 no. 5 KSchG (Eccher in Fenyves/Kerschner/Vonkilch, Klang3 § 6 para 1 no. 5 KSchG Rz 5 f; Kathrein/Schoditsch in KBB5 § 6 KSchG Rz 11 [aE]; Krejci in Rummel, ABGB3 § 6 KSchG Rz 83, 87 ff; Langer in Kosesnik-Wehrle, KSchG4 § 6 Rz 26).
According to the findings, license costs for film and sports rights are negotiated by the defendant. Thus, the circumstance mentioned in the clause of the increase in license costs for the acquisition of film and sports rights is not objectively justified, which is why the clause violates § 6 para. 1 no. 5 KSchG in any case.
Clause 25:
"Reminder fee per reminder € 10".
The plaintiff argued that the clause contradicted § 1333 (2) ABGB, according to which only the necessary costs of appropriate out-of-court debt collection and contribution measures in the event of default in payment may be demanded, which are in reasonable proportion to the capital claim. According to the most customer-hostile interpretation of the clause, however, the dunning charges should be due regardless of whether the consumer was to blame for the specific default in payment (which also arises in conjunction with clause 15), whether the defendant actually incurred the corresponding damages or the amount of the dunning charges demanded, whether the collection and collection measures were appropriate and the costs demanded for them necessary, and whether the costs demanded were in reasonable proportion to the claim being made. With the clause, the dunning charges would be passed on undifferentiated to the consumer, who would also have to replace inappropriate collection steps according to the clause. This leads to a gross discrimination of the consumer and thus to a violation of § 879 (3) ABGB.
The defendant replied that the reminder fee of EUR 10 was so low that it was in any event proportionate to the claims made; this in view of the fact that the cheapest regular subscription fee, which is usually the subject of a reminder, currently amounts to EUR 21.99 per month (S***** Entertainment Package) and that, particularly in the case of low main claims, these do not necessarily represent the upper limit of the collection and recovery measures. The clause is contained in the defendant's fee provisions and thus merely reflects the amount of the reminder fee - in accordance with § 25 (5) TKG - and not the legal prerequisites for its assertion. Even in the case of the most customer-hostile interpretation, the clause does not state that a reminder fee should be incurred in the case of default in payment through no fault of the customer's own. The clause was therefore not grossly disadvantageous.
The court of first instance judged the clause to be grossly disadvantageous within the meaning of § 879 (3) ABGB because there was a lump sum to be paid irrespective of the actual expense.
The Court of Appeal confirmed this decision. According to § 1333 (2) ABGB, in the event of default of the debtor, a creditor may, in addition to interest, also claim compensation for other damages caused by the debtor and incurred by him, in particular the necessary costs of out-of-court debt collection and recovery measures in accordance with the intended purpose, provided that these are in a reasonable proportion to the claim asserted. On the other hand, the present clause stipulates a fee for reminders without taking into account an appropriate relationship to the claim being pursued. According to the settled case-law of the Supreme Court, such a clause contradicts § 1333 (2) ABGB and constitutes a gross discrimination under § 879 (3) ABGB.
In its appeal, the defendant essentially repeats the legal position it had already referred to and further states that the court of first instance had ruled on clause 14 that its dunning procedure was very complex and that reminders might have to be processed manually, which is why a dunning fee of EUR 10 corresponded to the actual minimum expenditure of the defendant.
It must be pointed out in this connection:
Contrary to the defendant's view, the clause does not only determine the amount of the dunning charge, but at least it can be inferred from it that this dunning charge is to be incurred "per reminder". In the case of the most customer-hostile interpretation, the dunning charge would therefore also apply in the case of an unjustified reminder, which is why the clause is grossly disadvantageous in any case.
Clause 26:
"The subscriber has to reimburse the costs which were necessary for the appropriate collection or collection, as far as the collection of the outstanding contributions is carried out by a collection agency commissioned by S***** or a lawyer.
The plaintiff argued that the clause contradicted § 1333 (2) ABGB and was grossly disadvantageous within the meaning of § 879 (3) ABGB, since, according to the most customer-hostile interpretation, collection costs could be demanded which were inappropriately related to the claim being asserted, the clause did not refer to the different facts of § 1333 (2) ABGB which had to be clearly separated from each other, and the reference to the debtor's necessary fault was missing.
The defendant replied that the clause implies that no disproportionate collection costs are to be reimbursed, since only costs which were necessary for the appropriate collection or contribution are to be reimbursed. Moreover, the wording of the clause also implies that collection costs are to be reimbursed only in the event of fault.
The court of first instance referred to its observations on clause 15; the present provision, which is comparable in wording and content, does not meet the requirements of § 1333 (2) ABGB either.
The court of appeal did not follow the defendant's appeal. The Supreme Court had only recently ruled on 6 Ob 140/18h that an obligation on the part of the customer to reimburse the "necessary and appropriate" extrajudicial collection costs was intransparent if there was no indication that the costs to be reimbursed had to be in a reasonable proportion to the claim asserted, which also applied to this clause.
In its appeal, the defendant considers the legal opinion of the Court of Appeal to be incorrect, because the clause merely determines the modalities of cost reimbursement, not its amount, and presupposes that the costs to be reimbursed are proportionate to the claim asserted.
It must be stated in this connection:
According to § 1333 (2) ABGB, the creditor may, in addition to the statutory interest, also claim compensation for other damages caused by the debtor and incurred by him, in particular the necessary costs of extrajudicial debt collection or recovery measures, provided that these are in reasonable proportion to the claim asserted. In the case of the most customer-hostile interpretation, however, according to the clause the subscriber must reimburse the costs which were necessary for the appropriate collection or collection, without any fault being involved. The wording of the clause does not in any way imply, contrary to the defendant, that the collection costs would only be reimbursed in the event of fault. The clause thus infringes § 1333 para. 2 ABGB and is therefore inadmissible. Moreover, contrary to the defendant's view, the clause does not imply that no disproportionate collection costs are to be reimbursed. The absence of a reference to the fact that the costs to be reimbursed must be in a reasonable proportion to the claim being asserted also makes the clause intransparent because it gives the customer an unclear picture of his contractual position. He could feel compelled by the clause to reimburse collection costs even if their amount is disproportionate to the claim pursued (4 Ob 221/06p [item 2.5] mwN; cf. recently also 6 Ob 140/18h [items 3.3 and 3.4]).
Clause 27:
"The contract can be terminated for the first time at the end of the month in which the agreed minimum contract term ends (e.g. minimum contract term 12 months and contract start on 15 July: first termination option on 31 July of the following year). Thereafter, it may be terminated at the end of 12 months (e.g. on 31. 7. of the following year).".
The plaintiff argued that the last sentence of the clause meant a disproportionately long contractual obligation on the part of the customer after expiry of the minimum contractual period and was therefore inadmissible within the meaning of § 6 para. 1 no. 1 KSchG. In addition, the unreasonably long contractual relationship was also grossly disadvantageous within the meaning of § 879 (3) ABGB and therefore also invalid for this reason. In addition, after expiry of the minimum term of the contract, the clause automatically renews the contract with an exclusion of termination options for a further whole year, without the consumer being informed in good time of the significance of his conduct if he does not terminate, whereby the clause also infringes Section 6 (1) (2) of the Austrian Consumer Protection Act (KSchG). The technical and licensing costs incurred by the defendant could not per se justify a disproportionately long contractual obligation on the part of the customer.
The defendant replied that the clause did not contain an automatic extension of the contract, but merely regulated the termination date of the subscription contract. The duration of the contract was customary in the industry and not unreasonably long. The agreement that the subscription contract can be terminated at the end of the minimum contract period at the end of twelve months is objectively justified by the high technical and licensing costs to be paid by the defendant and the considerable economic risk involved. In particular, the defendant or its grandparent company took an extraordinary economic risk when acquiring the broadcasting rights for the German Bundesliga, so that long-term customer loyalty was absolutely necessary for it in order to be able to limit the entrepreneurial risk by means of an appropriate calculation. The agreement of a termination date at the end of each twelve-month period was appropriate and objectively justified due to the extent of the defendant's expenses.
The court of first instance made the following further findings with regard to clause 27:
"The defendant generally concludes its contracts for an indefinite period of time with a minimum contract duration of 12, partly 24 months. Since the amendment to the TKG in 2016, a monthly right of termination has been agreed with new customers upon expiration of the minimum contract period; previously, the provision in question and, pursuant to Section 9.2. of the GTC, a period of notice of two months applied as of November 5, 2015. The defendant generally plans its acquisition of rights for four years in advance, so that a fixed, predictable customer base is economically relevant for it."
In legal terms, the court of first instance stated that the defendant was entitled to expect that it needed a certain degree of planning security for subscription fees through minimum contract terms in order to calculate its license agreements. However, the fact that the minimum contract term would de facto start all over again if the customer missed the right time and period for termination could no longer be justified with a justified expectation on the part of the defendant at the time the contract was concluded, but grossly disadvantaged the customer within the meaning of § 879 (3) ABGB.
The court of appeal did not follow the defendant's appeal. § 25d TKG in its now valid version BGBl I 2015/134 had not entered into force until 26 February 2016; the right to terminate the contract with a notice period of one month to the end of the following month provided for therein did not apply to old contracts. An analogous application of the right of termination pursuant to § 15 (1) KSchG was rejected by case law. However, under section 6(1)(1), second case, of the Consumer Protection Act (KSchG), particularly those contractual provisions within the meaning of section 879 of the Austrian Civil Code (ABGB) under which the trader stipulates an unreasonably long period during which the consumer is bound by the contract are in any event not binding on the consumer. This was intended to ensure that the consumer was bound only for as long as was objectively necessary in the interests of the trader. The appropriateness of the period depends on the nature of the transaction and the periods usually agreed by bona fide contracting parties. Whether there was an unreasonably long period was to be determined by weighing the interests of both parties, whereby the typical expectations of the customer were to be compared with the economic and technical interests of the entrepreneur. Long notice periods and automatic contract renewals, particularly in the telecommunications sector, mean that customers are unable to react promptly to current offers on the market and are thus either in danger of the offer no longer being offered at the end of their notice period or of having to pay the basic fee twice during the notice period, namely from the old and the new contract. Accordingly, the Oberster Gerichtshof (Supreme Court) has only recently ruled that a notice period of 12 weeks after expiry of the minimum contract period of a mobile telephony contract is inappropriate. In the present case, the defendant takes account of its legitimate need for planning certainty by agreeing minimum terms with its customers. However, the fact that a contract can only be terminated after a further twelve months have elapsed, even after the expiry of the agreed minimum term, makes it impossible for the customer to react to current offers on the market in the long term, which can no longer be justified by the defendant's need for planning security. The commitment period of twelve months after expiry of the agreed minimum contract period therefore infringes Section 6 (1) (1) KSchG.
In its appeal, the defendant objects to the Court of Appeal that the contracts concluded by the defendant differ from 9 Ob 14/17z
are not mobile telephony contracts for which the acquisition of rights could normally be planned more quickly due to the lack of high licensing and technology costs. However, it was precisely such contracts which were incurred by the defendant and which led to the fact that a fixed, plannable customer base was an essential economic necessity for the defendant. For this reason, contract terms shorter than twelve months would not be economically reasonable for them and would not be agreed by honest contractual parties in this line of business. A weighing of the typical expectations of the consumer against the economic or technical interests of the defendant would thus lead to the conclusion that the fixed contract term was reasonable.
This has to be explained:
As a general rule, entrepreneurs who incur a high economic risk when financing contractual services within the framework of a continuing obligation must bind their contractual partners for a longer period of time in order to be able to limit their commercial risk by an appropriate calculation (RS0123616). Ultimately, this is a question of consideration in individual cases. In the past, the Supreme Court has dealt with the admissibility of the contractual relationship, for example with regard to the general terms and conditions of fitness studios. In 1 Ob 96/17z (clause 6), the views of the previous instance were last approved within the framework of the rejection of extraordinary revisions on both sides, according to which a (original) 12-month commitment period was permissible, a 24-month commitment period was inadmissible, and a termination possible only annually after expiry of the minimum period was inadmissible.
The considerations of the judgment on 9 Ob 14/17z cited by the Court of Appeal can be applied to the present case contrary to the view of the defendants. Even if a mobile network operator does not have to bear any relevant multi-year licence costs, the technical costs and corresponding long-term investments are high. This is offset by the customer's interest (also highlighted in the materials on Art. 25d Par. 3 TKG 2003) in being able to react quickly to offers from competitors. As a result, a further commitment of twelve months (after expiry of the minimum contract period) cannot be justified.
Clause 28:
"S***** provides the subscriber with the smart card and the receiver for the use of the linear TV programme usually within 2-3 working days, but at the latest within 15 days after transmission of the access data for S****** Go. The Subscriber's obligation to pay shall cease for the period between the transmission of the access data for the use of S***** Go and the access of the Smart-Card of the receiving device, if this period exceeds 15 days".
The plaintiff argued that the clause was grossly discriminatory within the meaning of § 879 (3) ABGB, since a payment obligation of the consumer of up to 15 days could arise without the consumer already being able to use the additional offer S***** Go, for which there was no objective justification. Even if S***** Go were to be immediately usable, the clause would allow the consumer to incur a payment obligation of up to 15 days without being able to make full use of the defendant's offer, e.g. if S****** transmitted the smartcard and the receiver late, so that the user could not make use of offers with the exception of S****** Go.
The defendant argued that "S***** Go" was the availability of the programs subscribed to by the customer on a mobile device such as a smartphone or tablet, which the defendant made possible. This mobile retrievability on mobile devices was possible immediately after transfer of the access data. The customer could already fully use the defendant's entire subscribed program via "S***** Go". The transmission of the access data takes place within the scope of the contract conclusion in the specialized trade by immediate delivery and with order over the Website of the defendant or by telephone by transmission by E-Mail/SMS on the average within 15 minutes starting from order. Thus, it was possible for the customer to use the plaintiff's programs on his mobile devices even before transmission of the smartcard or a receiver. If there are more than 15 days between the transmission of the access data for "S***** Go" and the access of the receiving devices, the entire payment obligation of the consumer is waived for this period in accordance with this provision, even though he can already receive the entire programme of the defendant party via "S***** Go". The term is by no means grossly discriminatory but, on the contrary, a provision favourable to the consumer.
The court of first instance made the following further findings on clause 28:
"By means of 'S***** Go', the customer can receive the same programme content as with a receiver, but via the Internet by means of streaming on mobile terminals (which may be connected to a screen). The Customer receives the access data with the order confirmation of his regular subscription, with which he can immediately access the programme content. The receiver (and the smartcard) are delivered by post, usually within two to three working days. S***** Go' is regulated in more detail in Item 1.1.10 of the General Terms and Conditions as of 2 November 2016; accordingly, it is the customer's responsibility to ensure the suitability of the terminal and the Internet connection. Item 1.1.10.3 provides for specific conditions under which access to streaming services may be restricted by the Defendant. According to Clause 7.1, the subscription contract is concluded when the Customer places an order and the Defendant accepts the order by transmitting the usage data for 'S***** Go'.".
Legally, the court of first instance stated that according to the clause, the customer is obliged to pay the full monthly fee even if he does not make full use of the defendant's offer in the first 14 days after conclusion of the contract (= receipt of the access data in accordance with Section 7.1), but can only receive programs within the scope of the streaming service with the technical and contractual restrictions intended for this purpose. There is no objective justification as to why the defendant announces a delivery within two to three working days, but does not charge a fee until 15 days have elapsed (or less by this period), so that the clause violates § 879 (3) ABGB.
The court of appeal did not follow the defendant's appeal. It was not guaranteed that consumers would have sufficient Internet access or a TV set connected to the Internet to be able to use the defendant's programming accordingly. Rather, such customers would have to wait for the delivery of the smartcard or the receiver in order to be able to use the defendant's services. Customers have a particular interest in being able to receive programmes not merely via the Internet but via a smartcard or a receiving device, which is apparent from the fact that the defendant charges its customers between EUR 9.99 and EUR 24.99 per month for the provision of a second card in accordance with the price list established by the court of first instance. Nor could the defendant justify the customer's immediate obligation to pay by promising the customer a delivery within two or three days "as a rule" because the customer has no legal claim to it. Accordingly, a customer could not defend himself even if he had received the device only on the 15th day because it had been dispatched by the defendant with a delay of 14 days. According to this clause, the defendant undertakes to make the smartcard and the receiver available to the customer "at the latest within 15 days" after transmission of the access data for "S***** Go", but claims the full monthly fee for this period. The fact that a customer had to pay the full monthly fee even though he could not use the defendant's offer in the contractually agreed manner for a period of 15 days was not objectively justified and therefore infringed § 879 (3) ABGB.
In its appeal, the defendant countered the Court of Appeal that it disregarded the fact that the consumer had access to all programme content from the outset in any event by means of "S***** Go". All the programmes covered by the contract could therefore already be used by the consumer until the receiving device accesses them. In addition, the removal of the clause would result in a disadvantage for the consumer to the extent that in this case he would only be able to access the defendant's programme content upon delivery of the receiver and would not be able to make immediate use of it - as was previously the case and almost always the case with consumers' digital content.
This must be explained:
The appeal does not address the reason given by the Court of Appeal that the customer could not use the full (functional) scope because it was not ensured that he - already - had the technical prerequisites for S***** Go. The mere (additional) possibility of using S***** Go cannot be equated with the possibility of using it via receivers - which the customer primarily chooses if he would otherwise have chosen a pure streaming product. Reference can be made to the considerations of the Court of Appeal, which are applicable in their entirety (§ 510 Paragraph 3 Sentence 2 ZPO).
Clause 29:
"S***** may also agree contract amendments by mutual agreement with the subscriber. The subscriber shall receive a written offer to amend the contract by mutual agreement at least one month before the planned amendments enter into force. All changes are shown in this offer. In addition, the subscriber will find a reference to the full text version at www.s*****.at/AGB. At the same time, S***** shall inform the Subscriber of the effective date of the planned changes. The offer shall be deemed accepted if the subscriber does not object in writing until the planned changes come into effect. S***** shall inform the subscriber of this period and of the importance of his conduct in this offer."
The plaintiff argued that the clause violated § 879 (3) ABGB and § 6 (3) KSchG because unrestricted changes to the contract should be permitted by way of fictional explanation. The fact that the defendant undertakes in the clause to inform the consumer of the significance of his conduct does not alter the fact that the clause allows any amendment to the contract.
The defendant replied that the clause was neither grossly disadvantageous nor non-transparent, since the consumer was separately informed by the defendant of the significance of his conduct and was given sufficient time to provide feedback.
The court of first instance judged the clause to be intransparent pursuant to § 6 (3) KSchG and grossly disadvantageous pursuant to § 879 (3) KSchG, since the "contract amendments" possible here by fiction of consent were in no way determined.
The appellate court stated that the present clause, as already stated by the first court, complied with the requirements of § 6 para. 1 no. 2 KSchG. However, the admissibility of the clause was also to be examined in accordance with § 6 (3) KSchG and § 879 (3) ABGB. According to settled case-law, a clause which allows amendments to the contract on a fiction of consent without restriction in terms of content and extent and does not even rudimentarily reveal any restriction which could protect the consumer from the occurrence of unreasonable disadvantages violates the requirement of transparency. The reason behind this is that, in practice, despite the formal right of objection, the contractual fiction of consent largely amounts to a unilateral power of amendment on the part of the entrepreneur, because experience has shown that consumers do not deal with offers of amendment, which is why they should be granted a need for protection as a result of the danger of their passivity. Since the present clause permits a change of essential obligations of the parties, in particular also of performance and consideration in favour of the defendant in almost every direction and to an unlimited extent, it infringes § 879 (3) ABGB and § 6 (3) KSchG.
In its revision, the defendant takes the view that the clause only covers the formal criteria for a contractual amendment, but not the regulation of substantive parameters, such as the possible scope of the contractual amendments, and that it is permissible for this reason, since the formal requirements of § 6 (1) (2) KSchG are fulfilled.
This is to be explained:
The conformity with § 6 para 1 no. 2 KSchG does not make an examination of the clause according to § 879 para 3 ABGB and § 6 para 3 KSchG superfluous - as correctly recognized by the previous instances. On the basis of the case-law of the Supreme Court, the Court of Appeal held that the clause infringed these provisions because its content and extent permitted contractual amendments without restriction. Since the appeal merely argues that the clause only regulates the mode (in conformity with § 6 (1) 2 KSchG), but not the content or scope of possible amendments, it does not in reality oppose the assessment of the appeal court. The revision is not carried out in accordance with the law on this point (cf. RS0043603).
b) On the objected business practice (injunctive relief according to § 28a KSchG):
The plaintiff submitted that there were numerous cases in which the defendant claimed to have concluded contracts by telephone and raised claims, although consumers had not sent her any written declarations concerning the acceptance of her offer on a durable data carrier. Therefore, the defendant infringed Section 9 (2) FAGG. The defendant apparently systematically set this conduct, so that the impairment of the general interests of consumers required by § 28a (1) KSchG was present. The service provided by the defendant was the provision of access to TV programmes and additional services. Its service therefore does not consist in the direct provision of specific digital content, as is the case, for example, with the purchase of an individual download or the streaming of a specific film. The defendant therefore did not provide digital content within the meaning of § 3 no. 6 FAGG.
The defendant contested and argued that its telephone contracts were not covered by § 9 (2) FAGG. This provision applies exclusively to distance contracts for services. However, the TV programmes or on-demand services offered by the defendant were to be qualified as the provision of digital content. The defendant does not merely offer access to TV programmes and additional services, but also enables its customers to make direct use of the corresponding content. It produces the content of those TV programmes itself (S***** Sport Austria) or has acquired the rights to those TV programmes (e.g. the programmes in the S***** Cinema programme package, which contains purchased and self-produced content) in order to make that content directly available to customers.
The court of first instance made the following further findings with regard to the injunction application based on § 28a KSchG:
"According to Clause 1.1.1 of the General Terms and Conditions as of 5 November 2015, 22 February 2016 and 2 November 2016, the defendant (mutatis mutandis) makes various programme packages available to the subscriber, each consisting of a different number of programme channels on which different programme contents (programmes) are broadcast. Furthermore, the defendant provides access to content via additional services. The defendant or its group companies produce some of the content themselves, some of it is purchased. In the period from May 2015 to February 2016, the defendant [by telephone; undisputedly] contacted several consumers throughout Austria as to whether they would like to conclude a contract with it or extend it after termination. Although the customers did not return a written declaration of their acceptance to the defendant after receiving the contract documents and/or welcome letters, the defendant referred to the validity of the conclusion of the contract in each case. The defendant then accepted retroactive contract dissolutions as a gesture of goodwill."
Legally, the court of first instance stated that the Consumer Rights Directive did not distinguish whether the distance contract was concluded for services, goods or digital content when it came to the formal requirement under Art 8 (6). The intention of the Austrian legislator in implementing § 9 (2) FAGG and specifying "services" was merely to exclude contracts for the sale of goods, because in this respect a sufficient level of protection was guaranteed by the pre-contractual obligations and the right of withdrawal. The defendant's offer goes beyond the mere provision of digital content; it not only makes individual content = programmes available for retrieval or transmits them, but also creates an overall programme offer including additional services and offers ancillary services such as rental receivers, customer support, etc. The defendant's right of withdrawal is not limited to the provision of digital content. Since consumer rights are restricted in digital content, a legal protection deficit not intended by the legislator would arise if the term "service" were narrowly defined in § 9 (2) FAGG and not also applied to such cases. The defendant must therefore comply with the provisions of § 9 (2) FAGG when concluding or renewing contracts negotiated by telephone. Something else could apply in the case of additional services, such as video on demand, for example, where certain content is ordered for a fee by the customer on the basis of an individual contract. However, the claim under 1.b), which is based on "services", is thus justified.
The Court of Appeal confirmed this decision. According to the prevailing opinion, § 9 (2) FAGG should also be applied to contracts for non-physical digital content. The court of first instance had therefore correctly recognised that the defendant had violated § 9 (2) FAGG through its business practice in business dealings with consumers in connection with contracts concluded outside business premises, whereby the injunction request under § 28a KSchG had to be granted.
In its appeal, the defendant upholds its legal view that § 9 (2) FAGG does not cover its services. A different understanding would also be contrary to the Directive.
This is to be explained:
The Consumer Rights Directive (Directive 2011/83/EU, in short: VRRL) aims at full harmonisation. According to Article 4 of the Directive, the Member States may neither maintain nor introduce domestic legal provisions that deviate from the provisions of the Directive, nor - to ensure a higher level of consumer protection - introduce stricter provisions. However, according to the introduction of Article 4, this only applies "where this Directive does not provide otherwise".
Under Article 8(6) of the Directive, for distance contracts concluded by telephone, Member States may provide that the trader must confirm the offer to the consumer and that the consumer is not bound until he has signed the offer or given his written consent and that such confirmations must be made on a durable medium. The Austrian legislature made use of that option by Paragraph 9(2) of the KSchG, according to which, in the case of a distance contract for a service negotiated during a call made by the trader, the consumer is bound only after the trader has provided the consumer with a confirmation of his contractual offer on a durable medium and the consumer has subsequently sent the trader a written statement of acceptance of that offer on a durable medium.
Section 9 (2) KSchG does not cover distance contracts concluded by telephone as such, but only distance contracts for services (and such only if they have been initiated by the entrepreneur).
The reason for limiting the scope of application of § 9 FAGG to distance contracts for services is the legislator's consideration that "sufficient consumer protection is already guaranteed for contracts for the sale of goods by the mandatory provisions of the Directive on the pre-contractual obligations of the entrepreneur and the right of revocation" (ExplanatoryRV 89 BlgNR 25. GP 6). This is based on the consideration that the inclusion of sales contracts in the regulation is not necessary, because the consumer has 14 days after delivery of the goods anyway to terminate the contractual relationship by withdrawal (Stabentheiner, Das neue Fern- und Auswärtsgeschäfte-Gesetz, VbR 2014, 108 [116]).
On the question of whether
Stabentheiner (loc. cit.) argues that § 9 (2) FAGG also applies to contracts for the supply of digital content outside of a physical data carrier, but argues that these contracts cannot be qualified as service contracts according to the VRRL's understanding of the term and that § 9 (2) FAGG only refers to a distance contract for a service. In his opinion, another conclusion could be reached from the comprehensively recognisable telos of the overall provision and the consideration underlying the demarcation made, namely that the legislature had in any event intended to afford the consumer any protection in connection with contracts negotiated by telephone, either that of a right of withdrawal, which the consumer is entitled to even after the first factual confrontation with the contract concluded (in the case of a sales contract even after delivery of the goods), or that of § 9 (2) FAGG. In the case of contracts for the supply of digital content outside a physical data carrier, the withdrawal period, as in the case of service contracts, began on the day on which the contract was concluded, so that it might have already expired at the time when the consumer became aware for the first time of the contract negotiated over the telephone and of his obligation to pay arising therefrom. If § 9 (2) were not applied to these contracts, the consumer would not have effective protection here against contracts imposed by telephone, which, according to Stabentheiner, would be difficult for the legislature to accept.
The fact that contracts on incorporeal digital content are also covered by Section 9 (2) FAGG is also mentioned in the literature by Cap (Implementation of the Consumer Rights Directive - The new Distance and Away Transactions Act) with reference to Stabentheiner's remarks, ÖJZ 2014, 707 [715]), Dehn (in Schwimann/Kodek, ABGB4 Va § 9 FAGG Rz 7), Docekal/Ecker/Kogelmann/Kolba (in Deixler-Hübner/Kolba, Handbuch Verbraucherrecht [2015] 133) and Kolba/Leupold (Das neue Verbraucherrecht [2014] Rz 246).
The Senate also agrees with this view. The restriction of distance selling contracts "about a service" in § 9 para 2 FAGG is not prescribed by Union law - the option according to Art 8 para 6 VRRL applies to distance selling contracts par excellence - but an autonomous decision of the Austrian legislator (zutr Cap, ÖJZ 2014, 715). Consequently, the expression "via a service" must also be interpreted solely in accordance with national law (Hammerl in Kosesnik-Wehrle, KSchG4 § 9 FAGG Rz 12). There is therefore no reason for the defendant's suggestion to initiate preliminary ruling proceedings before the European Court of Justice.
c) With regard to the performance periods:
The court of first instance found that purely legal changes in the defendant could be implemented within one month and that changes to the customer management system, including automated dunning processes and returns, would normally require lead times of six to twelve months. On this basis, it set the performance period for point a) of the injunction request at three months. The performance period, which was to be set by the authorities, was to enable the defendant to carry out a legally and technically careful implementation. However, in the interest of the customers disadvantaged by the unlawful provisions, it could be expected to make greater efforts. A performance period under point b) of the injunctive relief application had to be omitted because no conversions were necessary in this respect.
The Court of Appeal stated that the performance period set was in line with the case law of the Supreme Court in comparable cases. Contrary to the legal opinion of the first court, however, the omission of the business practice recognized as inadmissible also required a preparatory period, because the defendant would first have to determine which contractual relationships were affected by it; in this case, the appellate court, referring to 9 Ob 73/17a, also considered a performance period of three months to be appropriate.
With his appeal, the plaintiff seeks to waive a performance period for the self-appointment of the clauses declared inadmissible and with regard to the prohibited business practice, while the defendant seeks with its appeal to increase all granted performance periods to twelve months.
This must be explained:
The
According to § 409 (2) ZPO, the performance period must be determined appropriately (cf. RS0041265) and assessed on a case-by-case basis (9 Ob 11/18k point 5). Recently, the Senate has repeatedly dealt with the question of the
The Commission has examined in detail the time limit for the omission of the use of the inadmissible clauses on the one hand and the time limit for the prohibition of recourse to these clauses on the other (9 Ob 73/17a Punkt IV.5 mwH; 9 Ob 76/18v Punkt III; see also RS0041265 [T12]). He is of the opinion that the question of the admissibility of an
The time limit for performance for invoking inadmissible clauses cannot generally be answered according to the all-or-nothing principle. Rather, there may be clauses which allow an immediate withdrawal from a profession and do not require any further active precautions to implement this injunction, but also clauses which require certain operational and/or organisational measures in order to prevent them from being used as a basis for the management of old contracts. In the meantime, further decisions have followed this legal interpretation (6 Ob 56/18f; 1 Ob 57/18s).
In principle, the impermissible business practice of invoking a contract is also to be regarded as equivalent to invoking an impermissible clause, even though the requirements of § 9 (2) FAGG were not met. Also the stopping of such a business practice cannot happen overnight in a realistic view in a large company like here that of the defendant, but must first be communicated to the employees. For this, however, the Senate considers a period of one month to be sufficient, which is also supported by the first court's finding that purely legal changes in the defendant could be implemented within one month.
With regard to the use and invocation of the clauses identified as unlawful, on the other hand, it must be taken into account that, according to the findings, conversions of the customer management system, which also include the automated dunning process and returns, normally require lead times of six to twelve months. Even if the defendant is expected to make increased efforts to implement the judgment - as the court of first instance has already rightly demanded in principle - this would already be the case if the defendant complied with its cease and desist obligations under Section 28 of the Austrian Consumer Protection Act within six (i.e. not only twelve) months, in which case the defendant's appeal proves to be justified.
d) To the request for publication:
As requested, the court of first instance granted the plaintiff the authorization to publish the decision granting the claim in a Saturday edition of the "Kronen-Zeitung".
The Court of Appeal confirmed this decision.
Insofar as the defendant's appeal is directed against the plaintiff's authorization to publish the judgment in accordance with § 30 (1) KSchG in conjunction with § 25 (3) UWG in a Saturday edition of the "Kronen-Zeitung", reference must first be made to the permanent case law of the Supreme Court for the purpose of publishing the judgment. This consists of clarifying the infringement and giving the relevant public the opportunity to inform itself accordingly in order to be protected from disadvantages (RS0121963 [T2]). Especially since the defendant has about 400,000 customers in Austria according to the findings, the publication in the Austrian daily newspaper with the highest circulation is required. A publication only in a "relevant television magazine" cannot adequately meet the information needs of the numerous customers of the defendant. The defendant did not claim or prove that there was a certain television magazine which was read by at least as many customers of the defendant as customers of the defendant read the "Kronen-Zeitung", nor is it apparent.
e) The cost reservation is based on § 52 ZPO.
European Case Law Identifier
ECLI:AT:OGH0002:2019:0090OB00038.19G.0923.000
