The Supreme Court examined the general terms and conditions clauses of a rental car company, according to which renters must pay a flat-rate expense allowance of EUR 3.60 per liter for missing fuel.

The Association for Consumer Information (VKI) sued a car rental company to stop an allegedly grossly disadvantageous clause in its general terms and conditions. According to this clause, renters of a motor vehicle were obliged to return the vehicle with a full tank of fuel at the end of the rental period. Otherwise, refueling would have to be carried out by the company’s own employees. The renter would be charged EUR 3.80 per missing liter.

The company argued that an incompletely refueled vehicle would cause considerable additional expenses. This would result in considerable additional costs and loss of earnings. Apart from the flat-rate expense allowance of EUR 3.80 per missing liter, the company did not collect any fees. In general, the vehicles are returned with a full tank in 90% of cases. For the remaining vehicles, the average amount to be refueled is between three and ten liters. Only 0.1% have to refuel with more than 40 liters. In the vast majority of cases, the flat-rate amounts charged are below the average actual costs. The actual costs per vehicle cannot be determined exactly in advance; on average they amounted to around EUR 60.00.

The Supreme Court held (4 Ob 143/17h) that a clause is (among other things) grossly disadvantageous if it is unreasonable or there is no objective justification. A balancing of interests must be carried out here. In general, the flat-rate reimbursement of expenses is not inadmissible from the outset as long as it does not “grossly exceed the actual costs”.

In the specific case, the contractor invoiced less than the actual expense for the majority of the vehicles to be refueled. Despite the flat rate, the amount to be paid in arrears is by no means excessive. Only a negligible number of customers (who return the vehicle with a significantly lower tank level) have to pay more than the actual costs incurred. The existence of individual cases of hardship does not always render a clause invalid, otherwise any lump sum would be impossible. Furthermore, according to the Supreme Court, it is wrong to focus (only) on the small minority of only a few tenants who are in particularly blatant breach of their contractual obligations when assessing gross discrimination.

In the case in question, it was also not possible to calculate the specific additional costs in advance because a large number of factors were involved. For the tenant, this additional expense was completely unpredictable, unlike the chosen flat-rate billing per missing liter. According to the Supreme Court, the inclusion of the additional costs in the rent was also unjustified. After all, this also affects the 90% of renters who return the vehicle with a full tank. For all these reasons, the Supreme Court considered the flat-rate compensation of the additional costs incurred to be justified.

The drafting of general terms and conditions is often challenging. In particular, blanket provisions that enable practical action to be taken in the event of customers acting in breach of contract can quickly be challenged on the grounds of gross discrimination. To avoid invalid clauses and expensive class actions, have your T&Cs professionally drafted. We will be happy to draft your general terms and conditions and, of course, take current case law into account.