Higher Regional Court Vienna: Costs that are independent of the duration must also be reimbursed proportionally
Vienna (OTS / VKI) – The Association for Consumer Information (VKI) sued Unicredit Bank Austria AG on behalf of the Ministry of Social Affairs. The procedure is about which costs are to be reimbursed proportionally by the bank in the event of early loan repayment. The Higher Regional Court (OLG) Vienna has now confirmed that the lender also has to repay the term-independent costs to the consumers on an aliquot basis. The verdict is not yet legally binding.
In September 2019, the European Court of Justice (ECJ), interpreting the Consumer Credit Directive, ruled that the pro rata reimbursement of the total costs – which consumers are entitled to in the event of early loan repayment – not only includes costs that are dependent on the term, but also costs that are not dependent on the term, such as processing fees.
When implementing the EU directive in 2010, the Austrian legislature only stipulated that the term-dependent costs for borrowers must be reduced proportionally in the event of early repayment. The duration-independent costs were not discussed in the legal text. On January 1st, 2021, this gap was closed and the wording of the law was adapted to the ECJ decision. The Austrian legal text on consumer loans and mortgage loans now generally speaks of “costs” which are relatively reduced in the event of early repayment – although no distinction is made here between term-dependent and term-independent.
Unicredit used a clause in mortgage loans in 2020, according to which it should be made clear that processing fees independent of the term will not be reimbursed – not even on a pro-rata basis.
The VKI filed a lawsuit against this in spring 2020. After the court of first instance had dismissed the complaint, the second instance, the Higher Regional Court Vienna, upheld the complaint. It states that the Unicredit clause is inadmissible. In the event of early loan repayment, the bank would have had to reimburse not only the term-dependent costs, but also the term-independent costs on a pro-rata basis. According to the court, a contradiction between national law and a directive should be avoided as much as possible. The old text of the law did not deal with the costs that are independent of the term. The ECJ ruling made this gap in Austrian law obvious and it now has to be filled accordingly. According to the Higher Regional Court of Vienna, the fact that the costs that are independent of the term must also be reimbursed on an aliquot basis applies to both loans under the Consumer Credit Act and loans under the Mortgage and Real Estate Loan Act.
“This is a great interim success for consumers,” says Dr. Beate Gelbmann, head of the complaints department at the VKI. “The judgment of the Higher Regional Court of Vienna helps Austrian consumers to enforce their rights granted under EU directives if the judgment is upheld by the Supreme Court.”
The verdict is not yet legally binding. However, the Higher Regional Court of Vienna did not allow the ordinary revision.
SERVICE: The judgment in the full text gives up www.verbraucherrecht.at.
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