Austria: Yet another service fee? Austria’s Supreme Court confirms validity!

Case summary

In this case, the Austrian Federal Chamber of Labour (BAK) sued a delivery service that operates a platform for both partner businesses, restaurants, and shops on the one hand, and consumers on the other. Partner businesses use the online platform to offer the preparation and, if desired, the delivery of food and drinks of all kinds, as well as other products available in retail stores.

The BAK objected to a clause in the terms and conditions (T&Cs) of the delivery service that provided for a service fee for "the services rendered".

The service fee was displayed during the entire ordering and payment process and was charged with each order. No fee was charged for the use of the platform itself (without placing an order).

While the Commercial Court of Vienna ruled in favour of the BAK’s claims, the Court of Appeal overturned this judgment and dismissed the claims. The BAK’s appeal to the OGH also failed. This was a success not only for this specific company but for the entire industry.

Legal opinion

The OGH determined that the service fee represents a customary and expected charge for the use of an intermediary platform. The clause was neither surprising nor unusual and therefore does not violate the validity control referred to under Section 864a of the Austrian Civil Code (ABGB).

Furthermore, the clause was deemed sufficiently transparent because the exact amount of the service fee was displayed during the ordering process. The OGH therefore found no violation of the requirement for transparency as outlined in Section 6 (3) of the Consumer Protection Act (KSchG). In this regard, the OGH referred to a decision from 2024 (9 Ob 34/24a), in which a service fee of EUR 2.00 charged by a ticketing agent was also deemed transparent, in contrast to the decisions of the lower courts. There, too, the customer was informed about the exact amount of the service fee immediately before placing the order during the online ordering process.

Since the service fee constitutes the agreed payment for the primary service provided by the delivery service as opposed to an ancillary service, a content review in accordance with Section 879 (3) of the ABGB was not required. The much-discussed so-called "gym decisions", e.g., 5 Ob 169/22x, are, as the OGH correctly stated, not comparable to the service fee of intermediary platforms. In these decisions, the OGH had considered clauses for the collection of an annual "flat service fee" by the operator of a gym to be opaque, because no services were provided in exchange for this additional fee. However, a service fee for the intermediary activity of a delivery service or ticketing agent that serves as their primary compensation should be assessed differently.

The OGH emphasised that the service fee is not an additional service, but an integral part of the primary service, namely the intermediation of orders between customers and partner businesses.

Practical application

This decision is of particular importance for companies that operate similar business models and charge consumers fees for intermediation of services.

The recent decision confirms that fees for intermediation of a transaction are legally permissible BC2 and can be transparently agreed upon. The key factor is simply the design, comprehensibility, and transparency of such fees and terms and conditions.

Companies should ensure that such fees are clearly presented as payment for the primary service and do not appear as surprising or hidden costs.

authors: Manuela Zimmermann, Sara Khalil