Facts
One of the largest property management companies in Austria uses contract forms as a representative of landlords when concluding tenancy agreements. In the context of an action brought by an association, the Chamber of Labour sued for injunctive relief (inter alia) because of the following clause:
“The main rent referred to in § 3 shall remain stable in value in accordance with the value adjustment (reassessment) of the standard values provided for in § 5 RWG - based on the standard value applicable at the time of the conclusion of the contract. If this indexation can no longer be applied, the indexation shall be based on the consumer price index 2015 published monthly by the Austrian Central Statistical Office or the index replacing it. The starting point for this indexation shall be the index figure published for the month of the last determination of the guideline values. Adjustments shall be made immediately after the amendment of the RWG.”
The main rent was value-guaranteed by this clause with the guideline value, which is based on the CPI. If the guideline values are newly determined, the rent will be adjusted accordingly.
Legal basis
The contractual provisions listed in § 6 Abs 2 KSchG are inadmissible in consumer transactions unless they have been expressly agreed in the individual case.
§ 6 Abs 2 Z 4 KSchG is relevant here:
"(2) Unless the trader proves that they have been individually negotiated, the same shall apply to contractual provisions according to which
[...]
4. the trader is entitled, at his request, to a higher remuneration for his performance to be rendered within 2 months after the conclusion of the contract than the remuneration originally determined;".
According to § 6 Abs 2 Z 4 of the Consumer Protection Act, short-term and for the consumer surprising (because not expressly agreed) increases of a contractually agreed remuneration within 2 months after conclusion of the contract are to be prevented.
Conclusion
An indexation clause in general terms and conditions or contract forms is inadmissible against consumers if it does not take into account the time limit provided by law in § 6 Abs 2 Z 4 of the Consumer Protection Act (2 months) and allows - even if only theoretically - an increase of the rent in the first 2 months after conclusion of the contract. Therefore, it is advisable to regulate a point in time after the expiry of these 2 months at which a value adjustment (increase) of the rent is permissible for the first time.