Verdict: Refund clause of Bergbahnen Westendorf overturned

The Association for Consumer Information (VKI) had sued Bergbahnen Westendorf Gesellschaft mbH on behalf of the Ministry of Social Affairs. The subject of the procedure is a consumer declaration of waiver, prepared by the company, for any claims for reimbursement in the event of a partial or complete cessation of ski lift operations. The regional court (LG) Innsbruck assessed this clause as grossly disadvantageous. The verdict is not yet legally binding.

Bergbahnen Westendorf GmbH operates the "Skiwelt Westendorf" with numerous ski lifts. Before purchasing a season ticket or frequent traveler ticket, it gave its ski guests a signed information letter for the 2022/23 season, which initially pointed out, among other things, that due to legal requirements, the use of the lifts may be restricted or even completely impossible for certain periods of time could. At the end there was the following passage: "Therefore, I/we, knowing these circumstances, already waive the right to claim a pro rata refund if I/us should not be able to use the season or frequent traveler tickets due to the legal requirements I/we have to observe restricted, reduced or not possible at all for certain periods of time.”

The VKI sued because of this waiver. The LG Innsbruck agreed with the VKI and stated that a company that cannot provide its services due to legal requirements must reimburse the consumer for payments already received accordingly. A prior waiver of this right to a refund puts consumers at a serious disadvantage. The statutory risk-bearing rules cannot be effectively restricted to the detriment of consumers. Furthermore, the waiver comes as a surprise to the contractual partners, because the title of the document "Note on provisions for cable car and ski operations in winter 2022/23" does not suggest that such a far-reaching disadvantageous clause is hidden here. For this reason, too, the clause is inadmissible.

"Even if the clause did not become effective in the 2022/23 season due to a lack of restrictions due to COVID-19, clarifying this question was important in order to show that companies cannot effectively pass on the risk they face to consumers. This not only applies to operational restrictions due to COVID-19, but all cases in which the reason for the non-performance of a service lies in the so-called neutral sphere, i.e. neither contractual partner can do anything about it," comments Beate Gelbmann, head of the complaints department at the VKI, the procedure.