The Supreme Court (OGH) had to examine the following 3 clauses in general terms and conditions of a legal protection insurer, as the Supreme Court had not yet ruled on some of the matters:
1. Clause 1:
"No insurance coverage exists for the representation of legal interests [...] in direct or indirect connection with government orders, which are addressed to a majority of persons due to an exceptional situation."
OGH: The clause regulates an exclusion of risk resulting from government orders which are addressed to a majority of persons due to an exceptional situation, e.g. official COVID-19 orders (notices). The COVID-19 pandemic may be such an exceptional situation. In its decision 7 Ob 42/21h, the Austrian Supreme Court already ruled that such an exclusion of risk between two companies (in connection with business interruption insurance policy) was not grossly disadvantageous pursuant to Section 879 (3) ABGB.
For consumers, the clause is non-transparent within the meaning of § 6 (3) KSchG. The Supreme Court criticized that the term "exceptional situation" is unclear (but not the other terms used). In the general linguistic area, there are no clear criteria that allow a doubtless classification of every possible situation either as a rule or as an exception. The term, which is not explained in more detail, allows numerous interpretations, ranging from a merely unusual situation to an uncontrollable extraordinary coincidence (iSd § 1104 ABGB). However, since the consumer cannot reliably assess the scope of the risk exclusion - and thus his legal position - there is a risk that he will refrain from asserting legitimate claims against the insurer due to the undefined term "situation".
2. Clause 2:
"Indemnity and criminal legal protection for private, professional and business [...].
Criminal legal protection
for the defense in criminal proceedings before courts or administrative authorities [...]
regardless of the outcome of the proceedings, there is no insurance coverage if the insured person has already been convicted at least once by a final court decision for a relevant intentional offense."
OGH: The clause regulates an exclusion of risk. There shall be no insurance coverage for crimes in connection with prosecution for intentional acts and omissions if the insured person has already been convicted at least once by a final court decision for a relevant intentional offense. A policyholder must always expect risk exclusions and limitations. The insurer may exclude certain risks from insurance coverage if
- this is clearly recognizable to the policyholder,
- the clause is objectively usual and customary in the industry, and
- the clause is mentioned in a systematically correct place.
These conditions apply. The exclusion of risk is objectively justified, appropriate and also foreseeable for the policyholder with a relevant criminal record. Even if the term "relevant" prior conviction may be subject to interpretation in marginal areas, this term is nevertheless transparent. Therefore, the clause does not violate § 864a ABGB or § 879 para 3 ABGB and is not intransparent within the meaning of § 6 para 3 KSchG.
3. Clause 3:
"Who selects the legal representative, by whom and when is the legal representative appointed and what must be done in the event of a conflict of interests?
[...]
The right to choose refers only to persons who have their registered law office at the place of the court or administrative authority that is responsible for the first-instance proceedings to be conducted. If at least four such persons do not have their registered office at the place of such court or administrative authority, the right to choose shall extend to a person authorized to represent the party residing in the district of the competent regional court."
OGH: The OGH already ruled on a clause with the same content in its decision 7 Ob 156/22x. A clause is incomplete and non-transparent if the free right of representation is restricted to persons who have their registered law office at the place of the court or administrative authority. The clause does not observe the case law of the European Court of Justice (ECJ), according to which a non-resident lawyer can be chosen if he agrees to charge for his services in the same way as a resident lawyer. Thus, the purpose of the clause (cost-saving and premium-reducing effect) is preserved.
The clause violates the transparency requirement because it omits this essential information and is thus likely to give the policyholder an incorrect idea of his rights and deter him from pursuing justified claims. The clause is therefore inadmissible.