Article 8 of the Unfair Competition Act (UCA) constitutes a statutory provision in the field of competition law aimed at protecting contractual partners with regard to general terms and conditions (GTC). In 2012, a revision of Art. 8 UCA was carried out, which in principle allowed for a transparent review of the content of GTC. This possibility was previously not available under the former Art. 8 UCA. Due to the requirement that the GTC had to be used in a “misleading manner” to the detriment of a contracting party, the former Art. 8 UCA had practically no practical significance.
Review of general terms and conditions according to applicable law
Despite the introduction and revision of Art. 8 UCA, which in principle offers the possibility of an open review of the content of GTCs, the Federal Supreme Court tends to decide disputes relating to GTCs mainly on the basis of the “unusualness rule”. This leads to uncertainty for those subject to the legal system, as they have to rely on the Federal Court’s individual assessment in each case. The Federal Court appears to be inconsistent in its application of the unusualness rule and sometimes uses it in ways that are incomprehensible. It is therefore difficult for consumers to assess whether a disputed clause would be considered unusual by the Federal Supreme Court. Because of this case-by-case assessment, a potential lawsuit can also be based only to a limited extent on existing federal court decisions.
Comparison Germany
The model for Art. 8 UWG in Switzerland is found in German law. The content review of GTCs under German law refers to the review and assessment of the clauses contained in GTCs to ensure that they comply with legal requirements and do not unreasonably prejudice the rights of the contracting parties. The legal basis for the content review of GTCs in Germany is mainly regulated in the German Civil Code (BGB), in particular in sections 305 to 310 BGB. Here are the most important aspects of the content review of GTCs under German law:
1. transparency requirement (§ 307 BGB): General terms and conditions must be formulated in a clear and comprehensible manner. Clauses that are unclear or difficult to understand are considered invalid, as contractual partners must clearly recognize their rights and obligations.
2. conspicuousness requirement (Section 305 BGB): Disadvantageous clauses in GTCs must be specially highlighted so that they are noticeable to the contractual partner when the contract is concluded. This serves to protect the contractual partner from surprising and disadvantageous conditions.
3. prohibition of unreasonable disadvantage (§ 307 BGB): Clauses in general terms and conditions may not unreasonably disadvantage the contractual partner. In particular, a clause is invalid if it unreasonably takes into account the interests of the user at the expense of the contractual partner.
4. content review pursuant to Section 308 and Section 309 of the German Civil Code: These paragraphs contain special regulations for certain types of contracts, especially consumer contracts. Here, various clauses in GTCs are declared inadmissible if they violate the statutory requirements. This includes, for example, the invalidity of lump-sum compensation clauses or the prohibition of clauses that restrict the consumer’s statutory right of withdrawal.
5. unusualness check (Section 305c BGB): A clause in GTCs may also be invalid if it deviates significantly from the main performance obligation of the contract and unreasonably disadvantages the contractual partner. In such cases, it is examined whether the clause is unusual and could therefore be invalid.
6. review by courts: In the event of a dispute, a court may review the effectiveness of the GTC clauses and, if necessary, declare them invalid if they violate the above principles. This review is carried out in the context of a specific legal dispute and is based on the concrete circumstances of the case.
