1. Facts of the case
In the decision 4 Ob 207/22b, the Austrian Supreme Court (OGH) ruled on an action for injunctive relief brought by the Chamber of Labour against a bank. The bank provided prepaid voucher cards (prepaid cards) for certain shopping centres in Vienna, Lower Austria, Styria and Upper Austria, which could be used as a means of payment in these shopping centres. The bank used general terms and conditions in which it restricted the use of the voucher cards through certain clauses. The Supreme Court had to examine the following clauses:
Clause 1:
The prepaid card is valid for 12 months from the date of issue and is not automatically renewed. The period of validity is indicated on the prepaid card. [...]
The credit balance on the prepaid card can be exchanged in full at the bank. The credit balance will be exchanged free of charge within one year of the expiry date of the prepaid card. If the redemption is requested before the expiry date of the prepaid card or more than one year after the expiry date of the prepaid card, the cardholder shall pay a fee for the redemption in accordance with Section 10.2. [...]
The following fees are charged for the use of the prepaid card:
For the exchange of credit: 5% of the amount exchanged, min. 2.00 EUR, max. 5.00 EUR, if the cardholder
- requests the exchange before the end of the prepaid card's validity or
- requests the redemption more than one year after the end of the validity of the prepaid card (point 2).
Clause 2:
The prepaid card is valid for 12 months from the date of issue and is not automatically renewed. The period of validity is indicated on the prepaid card. [...]
A monthly holding fee of EUR 2.00 per month will be charged for holding any credit remaining after the end of the validity of the prepaid card (clause 2).
The fee will be deducted from the credit available on the prepaid card until the credit has been used up. [...]
The bank is authorised to charge the fee for each month commenced from the end of the validity period of the prepaid card, whereby the bank will not charge the fee for the first 3 months from the end of the validity period.
2. Views represented
- In the opinion of the Chamber of Labour, these GTC clauses violate the content control pursuant to § 879 (3) ABGB as well as § 18 and § 19 of the E-Money Act (E-GeldG).
- The two lower courts upheld the Chamber of Labour in full.
- In the opinion of the defendant bank, the clauses on the exchange and provision of the card balance define main services and are therefore exempt from the content control of § 879 (3) ABGB, as this only applies to ancillary services.
3. Legal judgement of the Austrian Supreme Court (OGH 4 Ob 207/22b)
The OGH did not share the view of the defendant bank, as the exception for principal obligations is to be understood very narrowly. Accordingly, not every clause stipulating a primary obligation is automatically exempt from content review, especially not those that restrict, change or undermine the actual service.
The fees regulated in the clauses for redemption and holding the card balance are perceived in isolation from the main service, which is why they are to be regarded as ancillary obligations. The clauses are therefore subject to content review and, as the credit on the card can be completely used up within a few years due to these clauses, are also grossly disadvantageous for consumers.
Furthermore, the clauses violate § 19 and § 18 E-GeldG. According to § 19, fees for the exchange of credit balances into money are only permitted if they are proportionate and in reasonable relation to the actual costs incurred. The fees agreed in the GTC are not compatible with this double proportionality. According to § 18 E-GeldG, the value of the credit balance on the card must be paid out to the holder of e-money, i.e. the cardholder, at par value at any time upon request. Due to the gradual expiry of the amount after one year due to the availability fee for non-use, the bank also violated this provision.
Overall, the OGH rejected the bank's appeal and upheld the judgement of the Court of Appeal. The judgement was also published at the request of the Chamber of Labour.
4. Conclusion
Provisions in the general terms and conditions of e-money-issuers that lead to a gradual loss of the amount/credit on the voucher card/prepaid card are not permissible, nor are disproportionate fees for the exchange of credit for cash. These do not pass the general terms and conditions content check pursuant to § 879 (3) ABGB, are grossly disadvantageous and do not comply with the E-GeldG.