Consumer Protection Act
| Basic data | |
|---|---|
| Title: | Consumer Protection Act |
| Long title: | Federal law of March 8, 1979, with which provisions are made to protect consumers |
| Abbreviation: | KSchG |
| Type: | Federal law |
| Scope: | Republic of Austria |
| Legal matter: | consumer protection |
| Date of law: | March 8, 1979 Federal Law Gazette No. 140/1979 |
| Effective date: | 1st October 1979 |
| Last change: | BGBl. I No. 51/2018 |
| Please note the note on the applicable legal version ! | |
The Austrian Consumer Protection Act (KSchG) , Federal Law Gazette No. 140/1979 , came into force on October 1, 1979 and is intended to protect consumers from disadvantage . The legislator was based on the assumption that entrepreneurs in business and legal transactions are in some cases far superior to their contractual partners , the consumers, due to their experience and economic potential. So that this imbalance of forces does not find its continuation in the concluded contracts , there are a number of protective provisions in Austrian private law , the most important of which are summarized in the Consumer Protection Act.
meaning
An important distinction for the Austrian legal system is made in Section 1 (1) KSchG - namely that between entrepreneur and consumer . Unless these two terms are defined separately, this provision is used when interpreting legal texts.
In order to prevent the feared disadvantage of the consumer, certain clauses and parts of the contract which are particularly disadvantageous for the consumer and which may well be agreed under general private law , for example between two entrepreneurs or among private individuals, are generally used in transactions between entrepreneurs and consumers declared inadmissible (Section 6 (1) KSchG).
Other, less grossly disadvantageous provisions are only ineffective if the entrepreneur does not prove that they "have been negotiated in detail" (Section 6 (2) KSchG), in particular are not merely part of the general terms and conditions .
The KSchG also contains provisions on the transparency requirement (§ 6 Paragraph 3 KSchG), according to which unclear or incomprehensible general terms and conditions are ineffective, on the brokerage business (§§ 30b, 30c and 31 KSchG), on the conclusion of contracts with tour operators ( travel agencies ), a judicial right of moderation for guarantees assumed by consumers (§ 25d KSchG), accruals or refunds (§ 7 KSchG), extensive rights of withdrawal of the consumer (§§ 3, 3a, 5e KSchG) - especially if the consumer does not sign the contract in a business location used by the entrepreneur , Market or trade fair stand ( doorstep selling , Keiler ) - provisions on warranty and guarantee (§§ 8, 9, 9a and 9b KSchG) as well as the representative action provided for in Chapter II . This makes it possible that certain organizations (listed in § 29 Paragraph 1 KSchG) such as the Federal Chamber of Labor , the Austrian Chamber of Commerce or the Association for Consumer Information without being "personally" affected (called a legal complaint ) can claim compliance with the KSchG. This is a very strong legal position, which deviates from the otherwise common principle in private law that only the person complained can enforce his / her rights.
It is also worth mentioning the implementation of the Distance Selling Directive in § 5c KSchG, which makes mailings that give the impression that the consumer has won a certain price enforceable. This is intended to put a stop to dubious profit promises ( profit commitments ).
Related provisions
The provisions of the E-Commerce Act , Federal Law Gazette I No. 152/2001 (ECG) should be mentioned here, which in Sections 5 - 12 not only protects consumers within the meaning of Section 3 Z 5 ECG, but also users in general . The ECG is based on the EC E-Commerce Directive . The parallels to the KSchG are that providers - in the case of the ECG: of information society services - should be encouraged to enable a fair and transparent contract conclusion by imposing special information and behavioral obligations.
There is also the so-called laesio enormis [shortening over half], which is regulated in § 934 ABGB . With this provision (which was already in force before the KSchG came into force), the legislature tries to bring about the objective equivalence of the services exchanged in the mutual contract through the threat of invalidity of the contract if one service is objectively not even worth half the other.
Due to the KSchG, § 864a ABGB was added, which protects against hidden disadvantageous provisions in general terms and conditions (AGB). Although not only consumers are protected by its wording, in practice this provision represents an important regulation for consumers, because it means that disadvantageous terms and conditions can no longer be inserted in confusing text passages or in places that are not to be expected in terms of content.
Web links
literature
Koziol / Welser: Outline of Civil Law , 12th Edition, Volume II, Pages 92ff Kosesnik-Wehrle (Ed.), KSchG - Consumer Protection Act, 3rd Edition, Short Commentary, MANZ VKI, Collection of Consumer Rights Decisions (KRES)
Footnotes
- ↑ BGBl. I 185/1999 (PDF) had §§ 5a - 5j on the implementation of the Distance Selling Directive (Article IV) inserted Gazette I No. 33/2014.. Away §§ 5c - 5i with the introduction of long-distance and Away business law and replaced § 5a and § 5b.
