The Association for Consumer Information (VKI) has sued Amazon EU S.à.r.l. (Amazon) over several points in the contractual terms of “Amazon Prime” on behalf of the Ministry of Social Affairs. According to the consumer advocates, the case was mainly about membership fees, payment methods, and the right of withdrawal. The Supreme Court (OGH) has now ruled six of the eight challenged clauses as unlawful, the VKI announced on Tuesday.
One of the clauses deemed inadmissible by the OGH contained a non-transparent regulation on the right of withdrawal for contracts concluded online. According to the consumer protection association, it specified how a withdrawal must be made — namely, by changing the membership settings under “My Account,” contacting customer service, or using the sample withdrawal form. “If consumers conclude a contract online, they may — according to consumer protection regulations — withdraw from it without any formal requirements,” explained VKI lawyer Joachim Kogelmann. “Such a withdrawal can therefore also be made verbally or in an informal email.” The clause deemed inadmissible by the OGH did not mention that other forms of withdrawal were also permissible, thereby leaving consumers unclear about their legal position.
Change payment method or membership
According to the VKI, another clause was also deemed inadmissible, which allowed Amazon, in the case of failed payments, to automatically — and without separate notification — charge another stored payment method. Since the use of another payment method could in some cases be associated with additional costs, such as in the case of an overdraft, the OGH considered this a “gross disadvantage.”
The OGH also deemed inadmissible a clause allowing Amazon to terminate the membership — likewise without separate notification — if payments failed and consumers did not provide a new payment method within 30 days. Amazon argued that, in “mass business,” it would be a considerable administrative burden to terminate each contract individually. The OGH countered, among other things, that Amazon could “simplify its internal administrative burden with the help of a standardized internal process.”
Mass business with pros and cons
“Any company that enjoys the advantages arising from contracts concluded in mass business must also design its internal processes and systems in such a way that the resulting disadvantages are balanced out and not passed on to consumers,” emphasized the VKI lawyer.
With the paid membership program “Amazon Prime,” Amazon offers various additional services, such as fast shipping of mail-order items at no extra cost or various digital services, according to the VKI. The basis for participation in the program is the general terms and conditions referred to as the “Amazon Prime Terms of Participation.”
Two clauses permissible
Two of the eight challenged clauses were deemed permissible by the OGH. Unlike the Vienna Higher Regional Court (OLG Wien), it did not consider the information section on membership fees, models, and terms to be unlawful. The clause merely provided information from which no rights or obligations for consumers arose, Kogelmann explained in response to an APA inquiry.
In the second clause deemed permissible, the issue was the refund of the membership fee under certain conditions. In summary, while the OGH saw a lack of transparency in the first two sentences, the clause contained a provision more favorable to consumers, which is why it was deemed “not inadmissible.” It was “not an inadmissible clause whose use the defendant would have to refrain from,” said the OGH.
