Terms and Conditions clause ineffective despite reiteration of statutory wording?

The Regional Court (LG) Munich had to decide whether the terms and conditions clause 'If force majeure or other circumstances exist whose elimination is impossible, the performance obligation lapses' withstands terms and conditions audit from the perspective of transparency and whether this general terms and conditions is thereby anticompetitive.

The Consumer Federation of Germany (Verbraucherzentrale Bundesverband) e.V. gave notice to Energy2day GmbH due to violation of competition law and demanded cessation of use of the following terms and conditions clause:

'If force majeure or other circumstances exist whose elimination is impossible, the performance obligation lapses'

The Federation of Consumer Centres and Consumer Associations was of the opinion that the terms and conditions clause violated the competition law requirement of transparency. Energy2day GmbH defended itself against the competition law notice of infringement regarding its general terms and conditions with the argument that the terms and conditions clause merely restated the statutory provision. As no cessation was provided, the Federation filed an action with the Regional Court (LG) Munich.

Court's decision
The Regional Court (LG) Munich I decided byJudgment of 05.08.2010 – Az. 12 O 3478/10that the disputed terms and conditions clause is ineffective and thereby anticompetitive.

The consumer could come to the conclusion on the basis of the terms and conditions clause that he remains obliged to perform payment of the fixed consumption-independent base price and cannot terminate the contract either. According to the competition law requirement of transparency, however, the wording of the terms and conditions must also prevent the risk that the customer is deterred from enforcing existing rights. A terms and conditions clause which misrepresents the legal situation and in this way enables the user to rebut justified claims by reference to the provision laid down in the terms and conditions clause unfairly disadvantages the consumer in breach of the principles of good faith and fair dealing.

The Regional Court (LG) Munich rejected the defendant's objection that the rights and obligations of the consumer in the described cases are precisely not regulated by the disputed general terms and conditions and that there is no obligation to repeat statutory provisions in full in the terms and conditions. Here there is precisely a lack of clarity as to the extent to which statutory provisions are to be modified, so that the consumer could come to the conclusion that he remains obliged.

Conclusion

When statutory provisions are incorporated into the general terms and conditions, the utmost caution is required. In any case, the terms and conditions must then also fully inform the consumer about the overall legal situation as provided by statute. Otherwise the individual terms and conditions clauses are quickly found to be ineffective and thereby also anticompetitive. You should therefore obtain advice from a lawyer experienced in this subject matter when drawing up your terms and conditions.