The judge Mathilde Beranek from the Commercial Court in Vienna, Legal Department 58.1 Vienna, convicted Lyoness as a snowball system and declared the company’s General T&Cs to be null and void (Case No. 581 Cg 44/16y-11).
The Austrian Supreme Court’s verdict of 18 May 2017 was already reconsidered during the first proceedings.
Among other decisions, the Commercial Court in Vienna stated the following:
Ultimately, the claim is legitimate notwithstanding the negation of the plaintiff’s status as a consumer. The clauses 13.2 and 13.3 of the General T&Cs, as well as the clauses 8.3 and 8.4 of the Supplementary T&Cs are null and void, separately, as well as in combination, because they limit the customer’s right to a refund of their “down payments/instalments” based on no factual grounds and on reasons which are largely at the discretion of the defendant. Thus, the cancellation conditions are deemed to be not only opaque according to § 6(3) KSchG (10 Ob 45/16i), but also grossly prejudicial.
Even if the point raised by Lyoness that the conditions refer solely to entrepreneurs was accurate, the General T&Cs would nevertheless be null and void due to the violation of § 879(3) ABGB.