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Case detail



Directive article Annex I al1 10.
National ID 4 Ob 121/10p
Country Austria Decision date 13/07/2010
Common name Kassentarif Decision type Supreme court decision
Court Oberster Gerichtshof, Wien Plaintiff(s) N/A
Court translation Supreme Court, Vienna Defendant(s) N/A
Subject black list
Keywords B2Bconsumer rights

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Headnote

Application of the prohibition set forth in item 10 of Annex I to the UCP Directive, requires that the rights given to consumers in law are represented as a specialty, a distinctive feature, of the trader's offer.

Facts

The defendant is a hearing aid acoustician who signed a so-called social security general contract ("sozialversicherungsrechtliche Gesamtvertrag") with a social insurance carrier which among other clauses stipulated the prohibition to advertise services of the insurer. In return, the defendant could offer its services for favorable prices, as part of the price was paid by a social security entity. The defendant, however, promoted his products in conjunction with services of the insurer.

In this respect, the plaintiff, a competing acoustician, argued that the defendant was in breach of the aforementioned treaty and had consequently breached the prohibition on unfair practices. According to the plaintiff, the defendant had breached item 10 of Annex I of the UCP Directive (as implemented in Austrian law).
 

Legal issue

Under what circumstances can item 10 of the Annex I to the UCP Directive be applied?

Decision

The court first sets out that the application of item 10 of Annex I to the UCP Directive (as implemented in Austrian law), requires that the rights given to consumers in law are represented as a specialty, a distinctive feature, of the trader's offer.

In this particular case, however, the defendant only used the opportunity indicating the scope of service of the insurer but it did not assert that only the defendant had such particular offer. Hence, the court held that item 10 of the Annex I was not infringed.
 

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Result

The plaintiff's request was denied in all three instances.

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