The following document has been released by the District Court in relation to that case.
It has been translated directly from the Court document and contains some English variables.
The original document can be found here:
Lyoness Vienna Court Document - July 2020
District Court Graz-Ost Radetzkystraße 278010 Graz
Vienna, July 28, 2020
209 C 360 / 19p
Plaintiff: Jan Kordysch
Beech ring 53 24848 Kropp
Represented by: Dr. Josef Fromhold Lawyer
Mariahilfer Strasse 66
1070 Vienna
Power of attorney granted.
According to § 19a RAO, the finished lawyer desires the payment of all costs at his hand.
Defendant: Lyoness Europe AG Bahnhofstrasse 22 CH-9470 Buchs Switzerland
Represented by: Reif und Partner Lawyers OG Brückenkopfgasse 1 8020 Graz
001 The plaintiff received the notification on July 21, 2020 that the witness Mag. Konrad Gößler and Mag. Elisabeth Bierbacher did not receive the summons for September 29, 2020 could be served because both witnesses are unknown.
002 That is somewhat surprising, because the two work or worked in the Legal department of the defendant in Graz and are now obviously completely in forgotten or just part of the game of hide-and-seek.
003 It happens the 'Request,' the return receipts for the summons (return envelopes) of the two witnesses to deliver the plaintiff to the KV.
004 Furthermore, the 'Request' for delivery of the cargo to the witnesses at the following addresses: Mag. Konrad Gößler, ***********Mag.Elisabeth Bierbacher, *********** Graz Certification: ZMR queries 2. Admissibility of the pleading.
005 The defendant was not given a pleading, but she made a comprehensive report
additional submissions, submitted a request for evidence and submitted further documents.
006 In addition, the brief contains mostly (already presented) legal information arguments that must be rejected.
007 In the event that the defendant's submission is nevertheless admitted, reimbursed
the plaintiff in terms of equality of arms this replica.
008 The sense and purpose of § 257 Paragraph 3 ZPO lies in particular in the court and opponent to inform about the disputed matter in good time so that in the preparatory
Tagsatzung a comprehensive process program can be established and thus process acceleration is achieved. Representative brief serves the appropriate information of the court and the opponent as well as the acceleration of the proceedings (LG Klagenfurt 18.09.2013 3 R 164 / 13x, OLG Vienna 27.06.2008 13 R 98 / 08i).
009 The defendant's arguments are disputed to the extent that it is not in the following
is expressly set out of dispute. 3. Application for the presentation of a certificate.
010 As a rule, the defendant submits a document with the designation “Screenshots of the
Registration process ”.
011 The defendant objects to the lack of international and local jurisdiction and the inadmissibility of the court seised and claims that the Lyconet agreement on the part of the plaintiff expressly to the content of the contract had been made.
012 On the basis of this agreement, the plaintiff is thus an entrepreneur commercial basis, the exclusive place of jurisdiction is Buchs agreed in Switzerland and Swiss substantive law and an arbitration agreement had been made and the plaintiff would have to the
refrained from reclaiming their payments.
013 According to the defendant, the plaintiff should sign the Lyconet agreement as amended in March 2018 on February 21, 2019 at 5:38:13 pm. This should be done by clicking the acceptance box “I have the Lyconet agreement, the Compensation Plan, the
I have read the declaration of consent under data protection law and the data protection declaration and accepted ”.
014 The defendant does not provide any documentation of the acceptance of the Lyconet agreement, only a screenshot of the accepted Lyconet agreement as Appendix 11.
015 However, it does not appear from this whether the Lyconet agreement was issued before clicking the acceptance box could be viewed and read at all. That was namely not the case.
016 The defendant has the registration or the acceptance process is also documented with certainty and in particular the IP address of the user logged.
017 Obviously the defendant has all logins and activities of the plaintiff logged (Appendix 12), but especially when the contract was signed she does not submit the leading act of accepting the Lyconet agreement in front. This is incomprehensible, because this is exactly what she needs to know about the document the contractual basis!
018 Otherwise it would not even be able to understand when the plaintiff called registered at all when she agreed to which terms and conditions, which instructions and notices given to the plaintiff during the registration process and what orders she made.
019 It is also obliged to do so under the ECG. Due to its online sales of goods and services, the defendant is a service provider within the meaning of the ECG. in the present case, a contract was concluded electronically. According to § 11 ECG, the defendant has the contractual provisions and the terms and conditions to the user to be made available so that he can save and play them back. This obligation cannot be waived to the disadvantage of the user.
020 The provider must give the user electronic access to the contract provisions and terms and conditions and offer the opportunity to save and reproduce the conditions, that is
to print out. It is not enough for the user to accept the conditions from provider in written form. The provision applies especially to contracts concluded through a website.
021 The defendant was therefore - to meet the information requirements of the ECG
to be able to - obliged to save the individual acceptance process.
022 The plaintiff now provides a complete screenshot of the download area in front. The defendant's terms and conditions are not available to everyone on their websites, but only in the internal member area, which requires prior registration necessary is.
023 This screenshot of the download area already shows with which one abundance of terms and conditions the defendant gags its members, but that none of them were available at registration, but according to the defendant they still apply should.
024 It can be seen only after registration in the internal members area of the online account can be viewed, you have to register beforehand and then log in with your username and password.
025 The entire terms and conditions can only be called up after registration.
026 How often and for how long the complaining party logged in is irrelevant. It is
just an assumption that the plaintiff has therefore dealt with the Lyconet agreement.
027 The member account is divided into countless individual pages and can be numerous
accounts and overviews can be viewed. The plaintiff has only dealt with the member account made familiar, she has not studied the Lyconet agreement.
028 It can be assumed with certainty that the defendant is registering the plaintiff has documented and logged, because how else could they? Understand when the plaintiff registered at all, when they did which terms and conditions she has agreed to and which orders she has made.
029 According to § 303 Abs 1 ZPO, if a party claims that a party is responsible for their
evidence significant document is in the hands of the opponent, on their request the court order the opponent to present the document by resolution.
According to Section 304 (1) ZPO, the submission of the document cannot be refused if
the opponent himself refers to the document for the purpose of providing evidence in the process has taken (Z 1), if the opponent under civil rights for delivery or submission of the certificate is required (Z 2) or if the content of the certificate is required after both parties are joint (Z 3). One is considered to be communal document in particular for the persons in whose interest it was established or for their mutual legal relationships are stated therein. Are considered communal also those about a legal transaction between the parties involved or between one the same and the common broker of the deal in writing negotiations.
030 If a deed is drawn up in the interests of both parties to protect their legal promoting relationships is then the legal interest of the plaintiff to answer in the affirmative on the presentation of the certificate, if this gives them certainty about it can procure whether all for assessing the disputed claim. The data to be used were taken into account when drawing up the document.
031 The request, the defendant according to § 303 ZPO under the legal consequences of failure to submit § 307 ZPO to apply, in a clearly legible form, a concrete reference to the
plaintiff related registration documentation including logging of the IP address and the full as well as the hierarchical structured presentation of all individual documents on the website at the registration (site structure, site map) to be submitted.
032 The plaintiff gives your express consent to the submission of this documents, in case the defendant should plead data protection reservations.
033 Reason: The documentation of the registration provides evidence provides the plaintiff with a substantial document that only the defendant has. The plaintiff cannot carry out this registration again and therefore has no possibility to take screenshots (again).
034 This is a document or an inspection item.
035 The defendant now relies on the one hand on this document by claims the plaintiff had agreed to all terms and conditions in the course of registration.
036 In addition, this also represents a joint document, in particular because it the mutual legal relationship is notarized and based on the specific contract negotiations refers.
037 A joint document within the meaning of Section 304 Paragraph 2 ZPO is here because it is a legal relationship between the parties to the dispute and also in the interest the plaintiff was created. This deed should also be the claimant serve as evidence or secure, clarify or secure their legal relationships have a beneficial effect on them. Their establishment purpose is to the legal To influence relationships between the parties in dispute or to secure them (RS0035021). The plaintiff and the defendant as the owner of the document are notarized by the legal relationship connected.
038 According to the content of the document (documentation of the acceptance of the Lyconet agreement and the clauses claimed by the defendant in the terms and conditions) there is a joint deed within the meaning of Section 304 (2) 2nd alternative. The notarized
process is related to the legal relationship in which the plaintiff is involved a direct legal relationship (5 Ob 225 / 08m).
039 The coveted documentation represents the visualization of IT-processed processes with which the parties in dispute settled their business relationship to have. This figuratively shows the coming about of the defendant alleged jurisdiction agreement and the plaintiff's declaration, to act as an entrepreneur towards the defendant.
040 It can also be assumed that one of the plaintiff's online account attributable documentation in the IT operated by the defendant. Establishment exists and its representation is possible, since the defendant is the technical operator of the website is.
041 That the defendant does not have any specific documentation is for that reason alone
unbelievable, because they are shown as a screenshot of the accepted terms and conditions or submit agreements and a screenshot of the login statistics. That they therefore
should not have any documentation of the registration, is therefore downright unthinkable.
042 The HG Vienna has already decided on October 27, 2016 58 Cg 4 / 16w because the
The defendant also presented an anonymous document there and alleged that it was
refer to the plaintiff. This judicial submission order has to do this led that the defendant pays the capital one day before the day of evidence has.
043 The registration specifically relating to the plaintiff is circumstances that are known only to the defendant and it is it in good faith also easily reasonable to submit the necessary documents. It's not allowed get so far that the need for evidence of one party from the opponent in one against is exploited in a manner contrary to good faith. The general rules on the burden of proof find a restriction where there is evidence from the obligated party cannot reasonably be expected. It's coming thus shifting the burden of proof, according to which the defendant is proving to be that the plaintiff has to make the specifically alleged agreements has expressly agreed (RS0040182).
044 The refusal to submit would be regarded as evidence that in the course of the registration the terms and conditions, in particular the Lyconet agreement, cannot be viewed were, the plaintiff did not expressly refer to the registration related material disadvantageous contractual points was pointed out to the plaintiff not registered as an entrepreneur.
045 Even in currently pending proceedings, the defendant's courts consistently carry
the submission of a registration specifically relating to the plaintiff on how for example:
BG Hollabrunn May 6, 2020 2 C 265 / 20f
BG Hollabrunn May 6th, 2020 2 C 264 / 8pm
BG Scheibbs May 18, 2020 2 C 236 / 20y
BG Zell am See May 20, 2020 18 C 194 / 20b
BG Scheibbs 05/22/2020 2 C 291 / 20m
BG Mistelbach 07/06/2020 18 C 293 / 20t
BG Wiener Neustadt 07.07.2020 7 C 266 / 20p
BG Wiener Neustadt 07.07.2020 7 C 414 / 20b
BG Tamsweg July 8th, 2020 2 C 89 / 20i
046 The BG Zell am See May 20, 2020 18 C 194 / 20b:
In the proceedings, the plaintiff relies on the fact that the registration or The Lyconet agreement was not available for you to switch to and therefore had not become part of the contract. The plaintiff is here with the evidence on the documentation of their registration with the defendant and thereby individual documents on the registration website. The
following statements in the application are likely to be that the defendant party (already for own evidence purposes) via an assignable documentation of the registration processes of its members. This is stated in the opinion ultimately not even disputed, but argued that one could not have an online registration (obviously meant physically). It can also be assumed that the defendant as the operator is also the structured presentation of your website is possible when registering is.
The defendant's objection that online registration is lacking electronic signature does not have the property of a document, if only because Section 369 of the Code of Civil Procedure also applies to inspection objects to the provisions on the submission of documents
subject.
The defendant has reasons for a refusal of the submission within the meaning of § 305 ZPO
party did not even claim in its opinion.
047 As a procedural order, the not separately contestable. The order for reference cannot even be reasoned in detail.
Proof:
Appendix XXXX Screenshot of the download area
Appendix YYYY orders for reference
4. To the unfair terms in the Lyconet agreement
4.1 Preliminary remarks
048 The defendant insists on its unfair clauses in the Lyconet agreement, which it only incorporated in order to avoid the bona fide sabotage consumers' legal protection.
049 The defendant distracts from the fact that only the reclaim of the payments for the discount coupons is. The discount vouchers are in the Lyconet agreement not regulated, not even mentioned.
050 This is not a dispute arising from the Lyconet agreement, so for the legal assessment of the claim hence the Lyconet agreement and the clauses contained therein are irrelevant.
051 The provisions on the content control of terms and conditions, in particular §§ 864a and
879 para 3 ABGB, remain unaffected anyway: surprising clauses with which the users are not expected after the design of the - electronic - document are not part of the contract in electronic communication either are contractual provisions that take into account all the circumstances of the case grossly disadvantage some, void in electronic legal communication.
052 In addition, the unfair terms would be in a separate contract document must be agreed individually. It is about:
• forced declaration to be a self-employed entrepreneur
• Arbitration agreement for an arbitration tribunal abroad (17.3 Lyconet agreement)
• Agreement on the place of jurisdiction for a court abroad (17.2 Lyconet agreement)
• Applicability of foreign law (17.1 Lyconet agreement)
• Inability to use the discount vouchers for purchases (2.2 ZBRG)
• no cashback for the discount voucher (3rd ZBRG)
• No reimbursement of payments for the discount voucher (6th ZBRG)
• no right of withdrawal (6th ZBRG)
• no right of return (6th ZBRG)
• The discount vouchers expire without compensation (4.2, 4.3 ZBRG)
053 The plaintiff is said to have agreed to all of this. The plaintiff is however master of her senses, she would never have agreed to such gagging clauses.
4.2 The validity of the Lyconet agreement
054 The Lyconet agreement is practically imposed on the members without the members to the surprising, unusual and associated adverse legal consequences are pointed out. Members can get discount coupons only buy and thus only gain membership benefits if you at least formally accept the Lyconet agreement.
055 The registration and the conclusion of the contract took place online here. Only after
registration, the member receives his access data for the member account and can then log in with your username and password. Only then can all terms and conditions can be viewed, but not during the registration process.
056 GTC will only be effective if the other party's GTC prior contract conclusion actually existed (4 Ob 161 / 14a), which is not the case here is. The easy accessibility of the terms and conditions on the Internet is not sufficient as long as the user of the terms and conditions cannot assume that the contractual partner actually does has seen it. This also applies to legal transactions between entrepreneurs.
057 The general terms and conditions of the defendant cannot - as with any serious company - can be accessed by anyone on their websites, but for this purpose are the
prior registration and opening of a member account required. Consequently
the plaintiff could not obtain the terms and conditions before registering.
058 The plaintiff did not have any prior to the acceptance of the Lyconet agreement
possibility to view this. Only after registering and logging in using username and password could be found in the general terms and conditions in the internal area of the member account be queried.
059 If the user of the terms and conditions wants to include the terms and conditions in the contractual relationship, it is his job to ensure that this actually goes to the contracting party
be transmitted. It is not sufficient if the opponent of the GTC user is the Terms and Conditions (for example by downloading from the homepage what is on the Websites of the defendant is not possible anyway). The submission of the terms and conditions is therefore not an obligation of the opponent to collect, but an obligation of the user of the terms and conditions
(Czernich in Czernich / Kodek / Mayr (Hrsg), European jurisdiction and
Enforcement law 4 (2014) on Article 25 margin no.70).
060 The defendant can be confirmed:
I have read the Lyconet Agreement, the Compensation Plan ... and accept it.
061 In doing so, it compels the plaintiff to confirm the facts, because otherwise - so
it is shown at least on enclosure 6 - no further clicking would be possible.
062 Section 6 (1) no.11 KSchG is also applicable to clauses in the form of so-called.
"Confirmation of facts" appear and provide that due to a declaration by the consumer of an existence or a non-existence of a fact should be rebuttable. Makes such a factual confirmation more difficult if it is in a contract form for entering into an obligation is included, which Legal enforcement of the consumer by burdening him with evidence, he would not otherwise have to provide, the clause according to § 6 Abs 1 Z 11 KSchG is void
(RS0121955, RS012195510, Higher Regional Court Vienna 1 R 177 / 19k, 10 Ob 70 / 07b Clause 1, 4 Ob
221 / 06p; 7 Ob 78 / 06f, 9 Ob 15 / 05d).
063 The confirmation of knowledge and consent contains, in addition to the legal component also a factual confirmation that the consumer can make law enforcement difficult and therefore problematic. For the acknowledgment of the terms and conditions by the consumer and the consent of the consumers to the terms and conditions, the entrepreneur has the burden of proof, if he invokes the terms and conditions. However, the customer has already confirmed that he is aware of the terms and conditions has taken and agreed to them, will be given to him in the course of legal proceedings or - defense imposes a burden of proof that the law does not meet.
064 The consumer would have to claim and prove that he regardless of the confirmation, in truth had no way of changing the terms and conditions take note.
065 The clause in which the consumer confirms the terms and conditions and acknowledged having expressly agreed to these is therefore a violation of
§ 6 Abs 1 Z 11 KSchG and is therefore not permitted (Docekal / Kiendl-Wendner in
Keiler / Klauser (Eds), Austrian and European Consumer Law (1st Lfg
2015) to § 6 KSchG margin no.89).
066 This also makes validity and content control more difficult because the consumers must have their declaration of consent countered. This from consumers can hardly be influenced assuming a statement that his worsened legal position, represents an unobjective interference in its legal sphere which is why there is also gross disadvantage within the meaning of 879 para. 3 ABGB.
067 Thus, the defendant still has to prove that the Lyconet agreement was actually agreed. By submitting Page 10 of 30 fictitious documentation that does not concern the plaintiff, however, it comes from you, no burden of proof.
068 The Lyconet agreement has therefore not become part of the contract at all. It lies
also no actual agreement of will.
069 In electronic business transactions, the service provider must provide the user with the terms and conditions and make them available so that they can be saved and played back (Section 11 ECG). That did not happen here. The provision applies above all to contracts that have a website to be completed.
070 GTC only apply by virtue of express or tacit agreement between the parties.
In addition, the customer must at least have the opportunity to understand the content of the terms and conditions, to take note. In the absence of these requirements, the declaration of the Customers do not have the objective sense of agreeing to the terms and conditions of the to be settled by the entrepreneur. There is neither an express nor an here implied approval of the Lyconet agreement.
071 Since the Lyconet agreement could not be viewed before registration was completed, the plaintiff still had to tick consent in order to proceed can, the defendant, as the user of the terms and conditions, could not assume that the Contracting party has actually seen it.
072 Even after the alleged acceptance of the Lyconet agreement, the plaintiff received
no written confirmation.
073 The numerous additional terms and conditions, such as the Lyconet Compensation Plan, on which the Lyconet agreement refers, and the additional conditions for discount vouchers can only be used after registering in the internal member area of the online account can be viewed.
074 The provisions on the inclusion and content control of terms and conditions,
in particular, §§ 864a and 879 Paragraph 3 ABGB remain unaffected anyway:
Surprising clauses with which the user after the design of the - electronic - document does not need to be included in the electronic traffic is not part of the contract. All are recorded for the customer clauses detrimental in any way; a gross disadvantage within the meaning of § 879 para 3 is not required here.
075 Likewise, contractual provisions that take into account all circumstances of
Grossly disadvantage a part in electronic legal communication according to § 879
Paragraph 3 ABGB is void.
076 The unfair clauses of bogus entrepreneurship that Arbitration agreement for an arbitration tribunal abroad that Agreement on the place of jurisdiction for a court abroad, the applicability foreign law, the inability to use discount vouchers for purchases,
no cashback when purchasing the discount voucher, no refund of the Discount vouchers as well as expiry of the discount vouchers without compensation not part of the contract anyway.
077 The defendant claims by default that the member has all of these expressly agreed to unfair terms because they ticked the box Lyconet agreement.
078 Even in the unlikely event that based on the defendant's fictional document it would be determined that the Lyconet agreement could be viewed prior to registration, became these unfair terms, which are only contained in the terms and conditions and must be accepted by means of a click procedure, not part of the contract. It should have been specifically pointed out and had this in Individuals need to be negotiated. These unfair terms would ultimately also have to be individually in a separate contract document must be agreed, the inclusion in terms and conditions gives them no effectiveness.
079 If a clause violates § 864a and no special notice was given, the contract without her. This is to be perceived by the authorities.
080 All of these clauses are objectively unusual within the meaning of Section 864a, because the plaintiff sensibly did not need to expect that. The significant disadvantage lies
obvious anyway.
081 The term "good faith", which is part of the practice of the corresponds to honest intercourse, dominates civil law in general; of the Legal traffic must not be misused to another put into it, but should be played honestly (RS0017859). Exactly against this one
the defendant violates this principle in numerous clauses of its terms and conditions.
082 An entrepreneur as the recipient of the declaration (who acts as the designer of the GTC of Invalidity clauses is aware) such, only declaratory declaration not as the intentional enforcement of an invalid contractual provision that the position of the contract partner unilaterally worsened, as a constitutive confirmation understand.
083 Such an empty blanket confirmation from the consumer is included abused in order to unnoticed his position towards the entrepreneur worsen, which equates to "putting in" the consumer and thus violates good faith (e.g. 3 Ob 186 / 14w mwN), so that the Clauses are ineffective.
084 In addition, the provisions of the FAGG apply. The defendant must die according to § 4 FAGG required information clear and understandable and such grant that they are an average informed and understanding ("European") Consumers could also perceive with due attention (Transparency requirement). It should generally be prevented that the entrepreneur his Information obligations fulfilled in a non-transparent form. Difficult to understand misleading or hidden information contradicts this transparency requirement. The information intended for the consumer may therefore also not be hidden within the terms and conditions. It must be guaranteed that the consumers can easily take note of the information provided can, if he wants to and if he has enough time available, this without
take up pressure and process it before it is contractually bound (5 Ob110 / 19s).
085 None of this applies here. The consumer could not in the slightest suspect that the clauses shown are contained in the terms and conditions.
4.3 On fictitious entrepreneurship
086 The member is declared an entrepreneur by the Lyconet agreement. Of the “Marketer” is defined as an independent, commercially active sales intermediary (Preamble Lyconet Agreement) and is intended as part of a commercial activity act as an independent entrepreneur (3.2 Lyconet agreement).
087 Entrepreneurship is "established" for the defendant by the fact that in during the registration process, check the box in front of “I hereby confirm that I am an independent entrepreneur. " This box won't checked, there is no further click. This declaratory statement will therefore forced.
088 That is how easy it is for the defendant to give the consumers an afterthought suggest that they have no consumer protection under the KSchG, none right of withdrawal according to the FAGG and could also be the place of jurisdiction for consumers not avail. The objections in this and all other processes prove this all the more.
089 According to the RSp, factual confirmations in the form of declarations of knowledge on the basis of which a pass or fail a fact is to be rebuttable, against § 6 Abs 1 Z 11 KSchG, if that means an inadmissible shifting of the burden of proof is effected. This causes a change
the burden of proof to the detriment of the consumer, violates the Confirmation of fact against § 6 Abs 1 Z 11 KSchG (RS0121955). A so-called Confirmation of fact sees a refutable declaration by the consumer about that the existence or the non-existence of a fact. Makes such a thing difficult confirmation of fact if they are in a contract form to conclude a obligation is included, the enforcement of the consumer by it burdens him with proof that he would not otherwise have to provide is the clause void according to § 6 Abs 1 Z 11 KSchG.
090 This declaration of knowledge now places the burden of proof on the consumer,
that he's not an entrepreneur.
091 The defendant goes further and even wants a declaration of intent for recognition
fake entrepreneurship, but this goes against Section 6 (1) no.2 KSchG (cf.
10 Ob 70 / 07b Clause 1; RS0121955) is violated.
092 If this procedure were not immoral per se, every online retailer could by a declaration of entrepreneurship wrested from the customer any consumer rights, in particular the right of withdrawal according to FAGG exclude and thus unlawfully enrich themselves.
093 The plaintiff did not want to become an independent entrepreneur at all. A
Agreement on entrepreneurship was therefore not concluded there is dissent. There is no “actual agreement of will”, a mere one on the other hand, a declaration of knowledge is not sufficient to make the consumer an entrepreneur.
094 The plaintiff had - as stated - before accepting the Lyconet agreement no possibility at all to view it, so that it did not become part of the contract at all.
095 Even if the Lyconet agreement had become part of the contract, the entrepreneurial fiction ineffective. The consumer characteristic is determined exclusively according to the objective criteria of § 1 KSchG and not from the terms and conditions. By means of a clause in a contract declaration or in the terms and conditions, a consumer cannot be declared an entrepreneur.
096 The surprise and duping effect through this surprising and disadvantageous clause is obvious, it was therefore even according to § 864a ABGB not part of the contract.
097 In addition, it is a prerequisite that the entrepreneur actually has a company operates.
098 The defendant regularly claims that the member, by clicking on this would have expressly agreed to be an entrepreneur in the appropriate box.
099 The defendant must not consider such a declaratory declaration as intended enforcement of an invalid contractual provision that the position of the contract partner unilaterally deteriorated, and thus not as a constitutive confirmation understand.
100 The defendant could therefore not assume, given its fraudulent conduct, that solely because of the confirmation of being an entrepreneur, the plaintiff should have underpinned to act for commercial purposes.
101 It follows objectively from the files that the defendant does not have the impression
an entrepreneurial property could arise, a forced declaratory explanation is not sufficient for this.
102 Such an empty blanket confirmation from the consumer is used here just misused to keep his position unnoticed by the entrepreneur to worsen what is called "laying down" the consumer against loyalty and Faith offends (e.g. 3 Ob 186 / 14w with further references) and is therefore ineffective.
103 As the designer of the general terms and conditions, the defendant saw the invalidation of the entrepreneurial fiction aware and could therefore not assume that the plaintiff wanted to give up legal position as a consumer and thus unilaterally worsen it.
104 The defendant aimed to make its members entrepreneurs treat to deprive them of consumer rights. Since all members must accept Lyconet agreement to buy discount coupons at all being able to and being entitled to remuneration becomes a with every new membership new entrepreneur created. The one touted for consumers the defendant's “purchasing community” therefore only consists of entrepreneurs.
105 The defendant does not require any proof of entrepreneurship, such as trade license, company register excerpt, tax number etc. She accepts willingly the customer's money. Only when the member has enough financiers has recruited and earned appropriate commissions, the defendant makes theirs payment is dependent on the submission of a trade license. A trade license can but not even presented by the members because it is all about Consumers who do not run a business act.
106 The total to be included in the assessment of consumer status. The contents of the file also do not provide a means for the defendant to consider verifiably confirmed entrepreneurial status. On the contrary, in the system the defendant does not find the slightest indication of entrepreneurial status the plaintiff. The fields "My company data,
Company name, UID “empty.
107 The Norwegian lottery supervisory authority also came to the conclusion that the marketers are de facto consumers because they buy products for their own consumption.
Generally speaking, the purchase of discount coupons can only be seen as a consumer business because it is not based on any goods, but only on the purchase price financial contribution in the pyramid scheme.
108 The defendant thus puts the members in several times:
It accepts payments without any further formalities, promises high profits, thus abuses the members as lay recruiters to attract new investors into the pyramid scheme and then, last but not least, retains the member earned commissions. Allegedly, these are supposed to be retained commissions. Charitable purposes are donated, only the non-profit associations the defendant in Switzerland dissolved due to inconsistencies. Whether money laundering here takes place, cannot be judged yet.
109 According to Section 1 (3) KSchG, transactions that a natural person prior to admission count of the operation of your company contributes to the creation of the conditions for
not yet to operate this company (start-up business). For this preparatory business, including the purchase of discount vouchers, enjoys the plaintiff nor the protection of consumer rights. Has the expectant entrepreneurs - as here - concluded a permanent obligation, so he can
on his capacity as a consumer even after the conclusion of the founding phase appointed (Schauer in Deixler-Hübner / Kolba (Hrsg), Handbuch Consumer Law (2015) Contracts, p. 31).
110 Above all, however, the provision in Section 3.2 of the Lyconet agreement, according to which the marketer in the context of a commercial activity as an independent entrepreneur
acts, void according to § 864a ABGB, as they are objectively unusual and surprising is, especially since they turn the consumer into an independent entrepreneur when the consumer actually doesn't run a business.
111 The entrepreneur's clause is also ineffective under Section 879 (3) ABGB because it is gross is disadvantageous. There is no factual justification for being a consumer to become an entrepreneur when participating in a purchasing community.
112 In any case, the clause is immoral within the meaning of Section 879 (1) ABGB because it is the legal position of the consumer in an objectively unjustified manner.
4.4 About the arbitration clause
113 The arbitration clause (actually the arbitration clause) in the Lyconet agreement is
ineffective at all, and for several reasons:
114 Z 17.3 Lyconet agreement only stipulates:
"Insofar as the court proceedings are not preceded by a state arbitration process,
the parties are obliged, before the initiation of any legal proceedings, on Lyoness Europe AG is based in CH-9470 Buchs to be carried out. "
115 The arbitral tribunal must be specified in advance exactly what is a condition for the effectiveness of an arbitration agreement at all.
116 From the completely indistinct determination, it is not even clear which one is before
Conciliation body such an agreement negotiation should be carried out ((BG
Scheibbs May 25, 2020 2 C 236 / 20y, May 28, 2020 2 C 291 / 20m).
117 What is an agreement negotiation concretely, the average consumer cannot guess. The plaintiff cannot even know whether and under which one conditions, the judicial process a state arbitration process precedes.
118 It is therefore given an unclear picture of its contractual position, so that the clause against the transparency requirement of § 6 Abs 3 KSchG violates.
119 The content of the arbitration agreement must be the declared will of the parties to
certain legal disputes or disputes arising from a certain legal relationship subject to the decision of an arbitration tribunal (Section 581 (1) ZPO).
120 It is not specified for which legal disputes and for which legal relationship this should apply. The arbitration clause is therefore ineffective. The clause its wording is based on a blanket agreement that “all disputes between the parties “shall be subject to arbitration, equal and is therefore void.
121 According to § 617 Abs 1 ZPO arbitration agreements between an entrepreneur
and a consumer only for disputes that have already arisen be completed.
122 According to § 617 Abs 2 arbitration agreements in which a consumer is involved
must be contained in a hand-signed document. This document may not contain any agreements other than those relating to the referring to arbitration.
123 In addition, the entrepreneur meets a prior to the conclusion of the arbitration agreement written instruction about the essential differences between an Arbitration and a court case (Paragraph 3).
124 Did the consumer neither at the conclusion of the arbitration agreement nor on
time of filing his domicile, habitual residence or the place of employment in the state in which the arbitral tribunal has its seat is Arbitration agreement only relevant if the consumer invokes it
125 None of this applies here.
126 According to the correct view, § 617 did not derogate from § 6 Abs 2 Z 7 KSchG
(Rechberger / Hofstätter in Rechberger / Klicka (eds), commentary on the ZPO5
(2019) too § 617 ZPO margin number 1). The arbitration clause is therefore anyway according to § 6 Abs 2 Z 7 KSchG ineffective, it cannot simply be prescribed in terms and conditions, it requires an individual agreement, which is not available here. It means that
Arbitration agreements in pre-formulated terms and conditions are ineffective.
127 Furthermore, the jurisdiction of an arbitration tribunal for consumer transactions can only will be effectively agreed if in the arbitration contract a conference location of
an arbitration court has been agreed, which does not contradict § 14 Abs 1 KSchG.
128 The arbitration agreement is therefore also ineffective because the agreed place of arbitration Buchs, contrary to Section 14 (1) KSchG, does not specify the place of residence, place of employment or is the habitual residence of the plaintiff. Because arbitration clauses on it aim to exclude legal places of jurisdiction, they object to and for
the § 14 Abs 3 KSchG (Mayr in Rechberger / Klicka (Hrsg), commentary on ZPO5
(2019) Before § 83a JN margin no.11).
129 In addition, the arbitration clause is considerably disadvantageous within the meaning of Section 879 Paragraph 3 ABGB: One Agreement according to point 16.3 of the Lyconet agreement, which the Parties are obliged to notify before the initiation of any legal proceedings on (foreign) seat of the contracting partner acting as an entrepreneur carrying out agreement negotiations is in any case grossly disadvantageous because of the
consumers are thereby faced with the problem to enforce his claims initially abroad, also at the company's headquarters to pursue out-of-court arbitration proceedings. apart from that, it should be noted that from this completely indistinct determination it is not even clear before which arbitration board such an arbitration board agreement negotiation should be carried out (and the defendant also in lacks further details in her brief in this regard) (BG Scheibbs May 25, 2020 2 C 236 / 20y, May 28, 2020 2 C 291 / 20m).
130 The Lyconet agreement is based on the Lyoness GTC and sets the registration
as a member according to the AGB 2018.
131 The GTC 2018 do not contain an arbitration clause. Contradicting this, the Lyconet agreement, however, such a thing. However, this should now also apply to the Lyoness
Terms and Conditions apply and thus change the Terms and Conditions retrospectively.
132 This clause in the Lyconet agreement, which is an arbitration agreement in the deviating Lyoness GTC implemented retrospectively is surprising to be assessed and also disadvantageous and therefore ineffective within the meaning of § 864a ABGB.
133 The plaintiff therefore did not have to expect that the Lyconet agreement would contain an arbitration clause contrary to the previously accepted terms and conditions and
this should also apply to their entire membership.
134 The inconspicuously hidden clause was not found outside of the GTC expressly pointed out, it was therefore according to § 864a ABGB and § 6 Abs 3 KSchG not part of the contract.
135 The arbitration agreement is also subject to the immorality control of § 879 para 1 ABGB and is void according to this provision. The diluted freedom of choice the plaintiff is in the fact that they only accept the terms and conditions as a whole or from must refrain from contracting. The arbitration clause was with the sole intention "agreed" to the legal protection options under Conditions of diluted will-making diminish contracting party.
136 There is no objective justification that, in contrast to the General Terms and Conditions, the Lyconet agreement provides for a foreign arbitration tribunal to be invoked, where it does both terms and conditions apply jointly within the framework of the uniform membership contract.
137 The arbitration agreement is therefore ineffective for a number of reasons.
4.5 Regarding the place of jurisdiction agreement
138 Makes a factual confirmation difficult if it is in a contract form for conclusion of an obligation is included, the enforcement of the Consumer by burdening him with evidence that he would not otherwise provide the clause according to § 6 Abs 1 Z 11 KSchG is null and void.
139 An agreement on the place of jurisdiction has to be proven by the party invoking it.
As a result of the stated declaration of knowledge that the plaintiff had read and accepted the Lyconet agreement, the consumer now has the burden of proof imposed that there is no choice of court agreement. The bogus acceptance of the Lyconet agreement is therefore ineffective, which means that the defendant continues to do so. Has to prove the existence of a jurisdiction agreement.
140 The conditions for the validity of jurisdiction clauses are narrow to be interpreted (RS0114604).
141 The Lyconet agreement stipulates: Exclusive place of jurisdiction for all disputes arising from or in connection with this Lyconet agreement is Buchs,Canton of St. Gallen (Switzerland).
142 This choice of court agreement applies only to disputes from or in connection with the Lyconet agreement.
143 However, the dispute at issue is not one that is results exclusively from the Lyconet agreement or in connection with it stands.
144 The plaintiff is demanding back its payments for discount vouchers, but which are not regulated at all in the Lyconet agreement, they are not there mentioned once.
145 So it is not objective, at least not exclusively about a dispute from the Lyconet agreement, which is only the remuneration for recruiting other financiers regulates, but a dispute arising from or in connection with discount vouchers.
146 Thus, the choice of court agreement, which relates exclusively to disputes of the Lyconet agreement does not apply here application.
147 The application of the jurisdiction agreement of the Lyconet agreement would
Prorogation but inadmissible way on the entire contractual relationship and thus also to disputes arising from the Lyoness GTC and the additional conditions for Lyoness expand discount coupons.
148 A choice of court agreement is only effective if it refers to an already arising dispute or disputes arising from a particular legal relationship. This requirement is not already met by the fact that legal relationship already exists, but the jurisdiction agreement must be
refer to it according to their content. Thereby the validity of a jurisdiction agreement will be limited to the litigation that have their origin in the legal relationship on the occasion of which the agreement has been closed; no party should be surprised by the fact that the
Establish jurisdiction of a particular court for all legal disputes that may result from the relationships with your contractual partner and which have their origin in a relationship other than that on the occasion of which the justification of the place of jurisdiction was made (OGH 4 Ob 180 / 00z).
149 The requirement of certainty thus corresponds to Section 104 (2) JN. The validity of a
Agreement on the place of jurisdiction should be restricted to those legal disputes
which have their origin in the legal relationship on the occasion of which the agreement
was closed (ECJ March 10, 1992, C-214/89, Powell Duffryn / Petereit). On the other hand
one party should not be given the opportunity to work with a single party comprehensive clause ("all disputes between the contracting parties") a subject an unmanageable number of future legal disputes to the prorogation (Czernich in Czernich / Kodek / Mayr (Hrsg), European jurisdiction and Enforcement law 4 (2014) on Article 25 margin no.36).
150 The choice of court agreement is therefore too vague or does not apply at all to the dispute in question and is therefore irrelevant.
151 Because the extensive application of the jurisdiction agreement to the dispute at issue would result in a single comprehensive clause ("All disputes between the contracting parties") and would be one unmanageable number of future legal disputes subject to prorogation. Therefore, in the sense of the stated case, the jurisdiction agreement of the Lyconet agreement is inapplicable because it does not cover all disputes from the
membership relationship of the plaintiff to the defendant.
152 The GTC 2018 do not contain an agreement on the place of jurisdiction, contrary to this
Z 17.2 Lyconet agreement contains an agreement on the place of jurisdiction for Buchs,
Switzerland.
153 Thus, the defendant "transplanted" an agreement on the place of jurisdiction in the GTC and even changes the terms and conditions retrospectively.
154 Since this is surprising and disadvantageous, this jurisdiction clause has not become part of the contract within the meaning of § 864a ABGB. Terms and conditions are in doubt
to the disadvantage of the entrepreneur: The contradiction between AGB and Lyconet agreement is to be resolved in the sense of the ambiguity rule of § 915 ABGB, that there is no choice of court agreement.
155 This clause was surprising because it was not explicitly indicated at conclusion of the Lyconet agreement, the plaintiff cannot be expected needed. Surprising clauses with which the user after the design of the - electronic - document does not need to be included in the
electronic traffic is not part of the contract.
156 The choice of court agreement is unusual because it is also retroactive for the
previously concluded terms and conditions should apply.
157 A choice of court agreement is also excluded if a special one responsibility is given (consumer matters). If like here the the place of jurisdiction agreement is irrelevant.
158 A jurisdiction agreement must be applied both according to the material law as well as according to Art 23 para 1 LGVÜ (Art 25 para 1 EuGVVO) in legal transactions respect. There is thus an accumulation of Prerequisites for effectiveness, whereby Art 23 LGVÜ (Art 25 para 1 EuGVVO) only defines minimum requirements (Czernich loc. Cit. 25 margin no.21).
159 A clause contained in GTC is only effective if the GTC of the other party actually existed before the contract was signed (4 Ob 161 / 14a), which is not here the case is. The easy accessibility of the terms and conditions on the Internet is not sufficient as long as the
Terms and Conditions user can not assume that the contract partner actually saw it. This also applies to legal transactions between entrepreneurs.
160 Before the Lyconet agreement was accepted, the plaintiff had none at all possibility to view this. The defendant's terms and conditions are not on their websites generally accessible, but only in the internal member area, including the previous one registration is required. Thus, the plaintiff was able to register before registration do not obtain the terms and conditions at all.
161 Only after registering and logging in with a user name and password can the terms and conditions can be queried in the internal area of the member account.
162 If the user of the terms and conditions includes the terms and conditions of the contractual relationship wants to include, it is his responsibility to ensure that this actually transmitted to the contractual partner. It is not enough if the opponents of the terms and conditions user can obtain the terms and conditions (e.g. through download from the homepage). The submission of the terms and conditions is therefore no obligation to collect
of the opponent, but an obligation of the user of the terms and conditions (Czernich in
Czernich / Kodek / Mayr (eds), European Jurisdiction and Enforcement Law4 (2014) on Article 25 margin no.70).
163 Since, as shown, the Lyconet agreement did not become part of the contract at all
the agreement on the place of jurisdiction contained therein does not apply either.
164 Jurisdiction and arbitration clauses must also meet the requirements of the Clause RL
93/13 / EEC withstand. This gives the consumer the opportunity to lodge legal remedies with the court or to take other complaints,taken or made more difficult (Appendix lit q).
165 They are also subject to the immorality control of Section 879 Paragraph 1 ABGB (Czernich, also Article 25 margin no. 47) and content control (Czernich op. cit. margin no.48).
166 The plaintiff's diluted freedom of choice lies in the fact that they comply with the AGB
only have to accept it as a whole or refrain from concluding a contract. The jurisdiction clause was "agreed" with the sole intention of the possibility of legal protection of the will formation diluted under certain conditions contracting party to belittle. It is therefore null and void according to Section 879 (1) ABGB.
167 If a place of jurisdiction clause is contained in the general terms and conditions, it will only take effect if also finds a clear reference to them in the contract; one hidden inconspicuously the standing clause is therefore not sufficient (4 Ob 199 / 01w).
168 The statements made about the nullity of the arbitration clause also apply the jurisdiction agreement.
169 Here, contrary to Section 14 (1) KSchG, a place of jurisdiction was agreed which neither the place of residence, habitual residence or place of employment of the plaintiff
party is. Contrary to the prohibition of prorogation standardized in Section 14 (3) KSchG
the place of jurisdiction for the consumer according to the law locked out.
170 A place of jurisdiction agreement with a consumer is in accordance with Art. 17 LGVÜ
(= Art 19 EuGVVO) only permitted in the following cases (see OGH 4 Nc 11 / 09g), the
none of them are available here:
171 If it was met after the dispute arose (No. 1), which means, that judicial proceedings between the parties “immediately or shortly imminent ", so" concrete disputes "already exist, the procedure but is not yet pending in court.
172 Furthermore, an agreement on the place of jurisdiction pursuant to No. 2 is only permissible if it corresponds to provide consumers with additional places of jurisdiction.
Here, however, the exclusive place of jurisdiction in Buchs is imposed.
173 Finally, in No. 3 (to protect the consumer's contractual partner) a jurisdiction agreement is declared admissible if it has jurisdiction of the Member State in which the parties at the time of their (common) place of residence or habitual residence upon conclusion of the contract if the agreement is permissible under the law of the state in question.
174 The substantive agreement of the parties is governed both by national law and by
Art 25 EuGVVO recorded. According to the case law of the ECJ, the actual agreement is to
derive parties from the formal requirements. Compliance with the formal requirements of Art 25 EuGVVO is therefore a necessary, but by no means sufficient prerequisite for the effectiveness of a jurisdiction agreement (Czernich loc. Cit Margin no.22).
175 The actual agreement of the parties that a particular court is responsible for the dispute resolution should be responsible, is the core of the jurisdiction agreement. Without this actual agreement of wills parties do not come to a valid jurisdiction agreement (Czernich loc. Cit. Margin no33). According to the case law of the ECJ (ECJ December 14, 1976, 24/76, Estasis Salotti / Rüwa) is the prerequisite for the conclusion of an agreement is that the
Competence-establishing clause actually subject to an agreement of intent between the parties, which was clearly expressed. The “actual agreement of intent” is decisive (Czernich loc. Cit. Margin no. 34).
176 The Supreme Court attaches great importance to the requirement of an “actual agreement of will” Requirements and assesses the question of the existence of a lack of will in the result largely in accordance with the principles of national law (see OGH 7 Ob 38 / 01s). The requirements for the validity of jurisdiction agreements are according to
the Rsp of the Supreme Court in view of the consequences of such an agreement for the position should be interpreted closely in the process (OGH 7 Ob 38 / 01s OGH 7 Ob 320 / 00k). The presence of the Agreement of will must be proven by the party that invokes it (OGH 1 Ob 63 / 03a), before the prosecuted court, i.e. by the plaintiff, before the derogated court from the defendant (Simotta in Fasching / Konecny V / 1 Art 23 EuGVVO margin no.121) (Czernich loc. cit. 35).
177 The plaintiff, domiciled in Austria, did not want any conclude an agreement on the place of jurisdiction for a Swiss court, so it is there is a dissent and the agreement on the place of jurisdiction is due to lack of factual one agreement of will ineffective.
178 Even if the agreement on the place of jurisdiction is only to be assessed in accordance with Art the prerequisites standardized there are not present.
179 In the present case, the formal requirements of Art 23 LGVÜ (= Art 25 EuGVVO) not complied with. Compliance with the formal requirements is a prerequisite for effectiveness. Agreements on the place of jurisdiction that are not covered by any of the three alternatives of Art 25 EuGVVO are therefore void.
180 The written form requirement of Art 23 LGVÜ is not complied with, because one alone
the jurisdiction clause contained in the GTC is not sufficient. A separate contract, which expressly refers to the terms and conditions in which these jurisdiction clause is included, is not available.
181 For the inclusion of the jurisdiction agreement in the General Terms and Conditions according to Art 25 EuGVVO it is necessary, however, that the terms and conditions (at least with regard to that part which the agreement on the place of jurisdiction actually contains) the opponent of the GTC user must have been present (OGH 2 Ob 192 / 07k, Czernich op. cit. margin no. 69).
182 Is a jurisdiction clause contained in a text that is not part of the Supreme Court is particularly strict about the contract document or the contract offer Standards of: An inconspicuously hidden clause or the general acceptance of a written offer without an unequivocal clause in the offer therefore does not result in an effective jurisdiction agreement (OGH 9 Ob 134 / 04b; 4 Ob 199 / 01w; 6 Ob 185 / 02b RdW 2003/79, 91; 9 Ob
134 / 04b, Czernich loc. Cit. Margin no.73)
183 General Terms and Conditions, which contain a place of jurisdiction agreement and an electronic sent offer are only connected, do not become part of the contract, if there is no reference to the jurisdiction agreement in the terms and conditions in the offer text is included (1 Ob 98 / 11k Czernich loc. cit. Rz 75). No explicit reference was made here to the
Agreement on the place of jurisdiction pointed out, it is therefore invalid.
184 There is also no verbal agreement on the place of jurisdiction with a written one
confirmation before.
185 The form of a place of jurisdiction agreement in the terms and conditions does not correspond to the customs between the parties. A longer one would be required
Business relationship of some intensity, so that one party on a particular Form as "usual between the parties" (Czernich op. Cit. Margin no. 84).
186 Nor is there a trade custom in this regard, the would also be for that defendant subject to evidence, the mere assertion that such exists is not enough out.
187 The choice of court agreement is therefore invalid for several reasons.
4.6 Choice of law
188 According to Z 18.7 AGB 2018, the contractual relationship is subject to Austrian law
apply. In contradiction to this, according to Section 17.1 Lyconet Agreement, Swiss rights to be applicable.
189 Ambiguities and inconsistencies in the applicable terms and conditions go to burden of the contractor, an unclear statement becomes a disadvantage interpreted by those who have used the same (Section 915 half-sentence 2 ABGB). As The Supreme Court also vaguely treats provisions that are contradictory, i.e. not are to be reconciled with each other (7 Ob 152 / 06p). Section 915 HS 2 ABGB includes not only consumer businesses (Heiss in Kletečka / Schauer, ABGB-ON1.02 § 915 margin no10).
190 The BG Graz-Ost 16.04.2020 257 C 590 / 19i: Legally it follows that the applicant has the opportunity to invoke Austrian law.
Proof:
Appendix 1 AGB 2018
Appendix 2 Lyconet Agreement 2018
5. Consumer characteristic
5.1 Willful Disputes
191 The defendant asserts in every process, purely speculative and unsubstantiated, that the plaintiff is an entrepreneur, but is not able to give a specific company describe. The claim that the plaintiff attempted numerous others to recruit persons for membership of the defendant and distributed promotional materials and tried to earn a steady income procure is out of thin air. In the absence of personal contact between the the defendant cannot even begin to dispute any perceptions to have.
192 On this, the BGHS Vienna 02.26.2018 9 C 492 / 17v: In view of this, the claimant's consumer status was contested obviously "into the blue". The negative finding for the self-employed. The plaintiff's employment is the logical consequence of this.
5.2 Private investment
193 Membership and investments were made exclusively for private purposes. The plaintiff only wanted a higher return on the investment than on the savings account achieve and only had the intention of this disposition as her prospect to achieve the “passive income” that is asked and hoped for.
194 The plaintiff was at the only relevant time of joining Lyoness professional soldier and still is today. She did not operate or operate a business.
195 Even in the master data there is not the slightest indication that the plaintiff party is registered as a company. The fields “My Company data, company name, tax number, VAT number, commercial register number " are empty.
196 The plaintiff thus becomes the defendant as a consumer in the system led, even if the defendant now claims otherwise! The plaintiff couldn't assume that based solely on confirmation, entrepreneurs too which the plaintiff is alleged to have supported for commercial purposes act.
197 The only thing that matters for the assessment of consumer property is the time of the establishment of the contractual relationship. Of course, what matters is whether the private purpose was known to the entrepreneur when the contract was concluded or could be known in view of all the circumstances (Mayr in Czernich / Kodek / Mayr (eds), European Jurisdiction and Enforcement Law4 (2014) on Article 17 margin no.17).
198 The consumer property is after the position of the person within the concrete Contract in connection with its nature and purpose and not according to the answer the subjective position of the person (ECJ, 3.7.1997, C-269/95). Art 15 defines the consumer as well as § 1 KSchG activity-related - is decisively the purpose of the contract.
199 When assessing the purpose of the contract, the court has all actual to take into account circumstances that are objectively apparent from the files.
200 What is decisive is what purpose the entrepreneur is using when concluding the contract was known or could have been known in all circumstances.
201 The purpose of the contract was private investment and provision. This is also the objectively recognizable purpose of the contract for the defendant.The defendant also sold its investments for this purpose only. According to the defendant's advertising, the investments should be a passive income grant. According to their conception, they serve exclusively for private purposes investment. Since they are geared towards consumers, they are called yes.
Customer clouds.
202 In the case of clouds, money is invested, which is refunded at the end of the term and should also have a monthly return of € 300.00 to € 400.00 be distributed.
203 According to the brochures, the Clouds Lyoness unite customers from certain countries and the advantage is that customers of the cloud can earn Shopping Points. every month with their purchases to produce. The resulting SP volume is proportionate to all sponsors
distributed and paid out in the cloud.
204 Alone with a payment of € 1,500.00 per cloud, you should be able to do nothing to
receive passive income.
205 The promised passive income means nothing other than the performance an investment with the prospect of a return, whereby - as the name suggests says - no further active action by the investor is necessary.
206 That is why the plaintiff acquired the clouds, as passive income was promised. In order to meet the requirements for this, the plaintiff had to also activate the so-called Easy Shop Plus, i.e. monthly discount vouchers from purchase at least € 50.00.
207 The defendant was therefore well aware of the purely private use. Consequently
the plaintiff could not give her the impression that she was too commercial purposes.
208 On the contrary, the defendant put it on it through the bogus company declaration
to declare the members as entrepreneurs and to the members give the incorrect impression that they are entrepreneurs in order to repay them to be able to refuse.
209 Nor is there a permanent basis for paying in the amounts business organization necessary as for it, third persons for the business model interested. Neither the contract to acquire membership nor the Lyconet agreement are therefore a professional or commercial activity of the applicant attributable.
5.3 Recruiting members does not constitute entrepreneurial status
210 The plaintiff has only a few people from the relatives and membership recommended. Has an unknown group of people she not contacted.
211 The defendant dares to recruit 5 members as entrepreneurs use of their pyramid scheme through an organized and methodical approach to evaluate by setting up a distribution system.
212 The recruited members have not even invested capital in the defendant, whereby the plaintiff could not earn anything.
213 The indirect members cannot be attributed to the plaintiff, it are those recruited in turn by the recruited members. The plaintiff has not the slightest influence on this, it does not even know it.
214 How Austrian courts judge consistently and uniformly, justifies the participation in the defendant's system despite the recruitment of further contract partners entrepreneurship.
215 The terms and conditions state that payments are non-refundable. The promised profits were not paid either.
216 Thus, the member can only by recruiting further investors reduce preprogrammed total loss by attempting to recover part of it by somehow save the investment through recruiting commissions.
217 Membership at Lyoness always expires in the same way: One member recruits other people for Lyoness as a lay recruiter and thus becomes recommender of the recruited members.
218 But the advantages of a simple membership are not attractive, even economical even considered completely uninteresting: The cashback moves in the deep single-digit percentage range and the member is even better served if it is the same negotiate a discount with a dealer of his choice. In addition, the selection of partner companies and their range of products is modest, poor, mostly only local small companies (hairdresser Susi,
Gasthaus zum Kirchenwirt etc.). Often the companies don't even know anything of their luck, listed on the Lyoness website as a partner company become. In view of the doubtfulness of the business model, everyone has already agreed well-known companies distanced from Lyoness. The Lyoness Cashback Card is used by well-known companies are not accepted at all!
219 When the "purchasing community" was founded, this was of course deliberately calculated because the creative financing idea of Lyoness consists in the acceptance of
non-refundable payments, which is also the true core business of Lyoness lies. Lyoness will therefore have the opportunity to earn high remuneration and yourself to secure a “passive income”, promoted and advertised.
220 The horse's foot is that the promised profits are nothing more than recruitment bonuses for bringing in further investors. That will be the member's not said beforehand.
221 The paid-in capital is not given back, the risk of total loss is already there pre-programmed. So the customer only has the choice to write off his money or motivate new customers to make further payments to reduce their loss.
222 That means nothing else than that one is constantly urged to do new things to attract investors.
223 Recruiting additional members is the defendant's business model inherent to the system.
224 HG Vienna 09.09.2018 51 Cg 82 / 17s, 08.01.2018 51 Cg 6 / 17i:
The member is thus tempted to continue advertising in order to increase his advantage.
It cannot withdraw itself directly or indirectly from itself recruited members steadily increase the "substructure" because the attribution according to the members recruited by the self-recruited members ends. In the given context, recruiting additional members cannot be considered actual economic activity.
225 In view of the small number of benefits obtained, membership recruitment is not carried out Instead of an overall view far below the required level of organization a planned and frequent approach.
226 The objection that the plaintiff had by recruiting members established company is inherently abusive, but abused the defendant used its members as lay recruiters in order to raise even more capital, and thus improperly commercializes privacy.
227 Neither is there a permanent payment of the amounts to the defendant established operational organization necessary as for it, third persons for that of the defendant to be interested in propagating business model. Neither the contract for acquisition of membership nor the Lyconet agreement are therefore a professional or commercial activity of the plaintiff.
228 The behavior of the defendant to call their lay applicants now as entrepreneurs, also violates the prohibition of the "venire contra factum proprium" and is therefore to be regarded as an abuse of law (RS0014509). The defendant awakened at the plaintiff's behavior gives the impression that they are considered private customer recruiter can earn remuneration among family and friends.
229 In any case, the defendant's formal objections (in particular lack of jurisdiction due to entrepreneurship) an improper use of procedural means. Given the behavior of the defendant, it is not justified, these objections continue to be supported by the
Grant legal order (RS0022840).
5.4 No distribution system
230 The plaintiff did not build any in relation to the specific legal transaction entrepreneurial organization and did not create any resources (such as e.g. office, staff) for the sales of Lyoness.
231 It never recruited paying customers for the defendant and built itself up accordingly never have its own sales network. In addition, the plaintiff was party never worked in the sales of the defendant and never presented the defendants and their products at events or lectures. All the more so when the plaintiff did not really understand the defendant's system and himself also didn't want to deal with it in more detail.
232 At no point in time was there an immediate between the parties personal contact. Because the plaintiff was previously in no relationship to the defendant and there is only contact with the person making the recommendation. The members are recruited by private lay recruiters (so-called recommendation giver) who are themselves a member of the defendant, but not their Employees or authorized representatives are (3.3 AGB). Registration and also the Investments are processed exclusively online, i.e. in distance selling without simultaneous presence of the contracting parties.
233 In the absence of direct contact, the defendant cannot have any perceptions as to whether the plaintiff has set up or is trying to set up a distribution system. The defendant cannot even know these alleged allegations because it there was never any personal contact between the parties.
234 How does the defendant therefore know that the plaintiff in recruiting members acted regularly and methodically?
235 The defendant does not even specify in what form the alleged Sales system should have been set up (office, employees, website, Advertising?).
236 In any event, the plaintiff did not set up a distribution system like that also? It has no office for the sale of Lyoness discount vouchers set up and this neither in a public market nor on the street to purchase or offered online. The defendant's submission is intrinsic
contradicting and absurd.
5.5 On the decision of the BG Leoben
237 The defendant relates its statements exclusively to entrepreneurs, for which less stringent requirements for the validity of a jurisdiction agreement consist. The plaintiff is a pure consumer.
238 The not yet legally binding decision of the BG Leoben expressly speaks of one
a business-to-business contractual relationship. There the plaintiff was a GmbH
(That was of course blacked out by the defendant). The decision was made without a PV
solely on the basis of the documents submitted by the defendant (in particular the fictitious model registration and inadmissible due to the affidavit Statement by Stephan Kochauf). The decision was appealed against and will not be able to stand before the instance. The defendant also knows that was appealed, but she tries to create a favorable litigation situation for her.
239 The submission of a decision relating to an entrepreneur can result in a Consumer process can only be understood as an affront.
5.6 Conclusion
240 The consumer term of the LGVÜ (the EuGVVO) is to be interpreted autonomously, but
in fact, the tendency can be determined, the consumer protection provisions relative
to be used liberally (Mayr in Czernich / Kodek / Mayr (Hrsg), European Jurisdiction and enforcement law 4 (2014) on Article 17 margin no.10).
241 There is no mixed business here anyway, and the professional and commercial purpose would only play a very subordinate role. However, a non liquet constellation is - despite the burden of proof - at the expense of the Entrepreneur (so ECJ January 20, 2005, C-464/01, Gruber / Bay Wa, Rn 50; see also OGH 7 Nd 507/01 and 7 Nc 48 / 04z, according to which a business in doubt as Consumer business) (Mayr, loc. Cit. 18).
242 The plaintiff is therefore a consumer within the meaning of Section 1 (1) 2 KSchG and Article 15 LGVÜ.
___________________
There's a pending court case (AZ.: 209 C360/19p, District Court Graz/Austria) dated 29.09.2020 which will deliver the Courts final verdict.
This case has been postponed due to Covid-19 and will be reported on here as soon as it's available.
October 2020
Reports have come in that Lyoness did not show up for the Court Case.
As soon as I have more information, I will share it. .. watch this space!
No comments:
Post a Comment
Please do not post links or email addresses on your comment.
Thank-you.