New decision by Graz Regional Court on value protection clauses defuses Supreme Court case law

Few decisions of the Supreme Court in recent years have caused as much of a stir as the case law on value protection clauses in lease agreements.

In March 2023, the Supreme Court (repeatedly) ruled in its decision on 2 Ob 36/23t that lease agreements must also be measured against Section 6 (2) no. 4 KSchG. This provision declares agreements between entrepreneurs and consumers to be invalid, according to which a change in payment can already occur in the first two months from the conclusion of the contract (unless the clause was negotiated in detail). In this context, the Supreme Court therefore declared that a value adjustment clause which does not expressly exclude an index adjustment in the first two months from the conclusion of the contract is inadmissible.

Due to the prohibition of a reduction in the scope of application, which results in the absolute nullity of consumer law clauses, the fate of a myriad of value protection clauses seemed to be sealed.

This makes it all the more important to look at the individual proceedings in which the district, regional and higher regional courts apply the principles laid down by the Supreme Court to individual clauses. In this context, the (legally binding) decision of the Regional Court for Civil Matters Graz on 5  R 131/24g of 16.10.2024 is noteworthy. Here, too, the value protection agreement lacked an express exclusion of an increase in the first two months from the conclusion of the contract. However, the regional court declared that the value protection clause was nevertheless effective, especially as the reference date of the initial index was only 2 months ago and there was therefore no risk that price increases from the time before the lease agreement was concluded would lead to a price increase in the first two months. According to the regional court, the fact that there had been no increase within the first two months in actual contractual practice was equally important.

The fact that the regional court deviated from the rather absolute categories of consumer protection law in this case and took actual practice into account is quite remarkable. However, this view is likely to be in line with the case law of the Supreme Court, which stated in 4 Ob 4/23a (here in connection with interest escalation clauses for foreign currency loans) that the "practical handling" of a specific clause must always be taken into account within the scope of application of the Consumer Protection Act.

It remains to be seen to what extent these principles will shape and influence "clause jurisprudence".

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