Cross-border consumer contracts in the EU
Austrian law is applicable in principle to contractual relations where the place of business or residence of both parties is in Austria. This is not automatically so in legal transactions with a foreign element, e.g. if either party does not have its place of business or residence in Austria. In such a case, agreement may be first reached on which law is applicable (choice of law). If no such agreement exists, in principle private international law applies. This determines which national law to apply if there are points justifying the application of several national legal systems.
In the case of cross-border contracts (e.g. sales contracts, contracts for work and services, credit agreements) within the EU (except Denmark), the Rome I Regulation governs which national law shall apply. However, certain contractual obligations are excluded from the scope of the ROM I regulation, such as marriage contracts.
The main linking rules of the ROM I regulation are as follows:
- The law applicable to contracts for the sale of movable objects and service contracts is that of the state in which the seller or service provider is ordinarily resident (for companies, the place of the headquarters).
- If there is no express arrangement for special types of contract, the applicable law is that of the state where the contracting party providing the typical service is ordinarily resident (for companies, the place of the headquarters). In principle, the non-monetary benefit is always the typical service.
- Contracts concerning a right in rem to immovable objects and the leasing or letting of immovable objects are governed by the law of the state in which the immovable object is located (there are however exceptions).
- Special arrangements exist for contracts of carriage, insurance contracts and consumer contracts.
Special rules on consumer contracts
The principles outlined also apply in principal to consumer contracts. These are contracts between consumers and business people in the context of their business activity. In addition, there are special arrangements. If no choice of law has been made, the ordinary place of residence of the consumer determines which law is applicable. However, this only applies
- if the business person engages in his professional or commercial activity in the state of the ordinary place of residence of the consumer, or
- directs such activity in any manner to this state or to more than one state, including this state (e.g. advertising through brochures, newspaper advertisments)
and the contract falls under that activity.
In consumer contracts it is still possible to make a choice of law, i.e. to declare a specific national law applicable, provided that the consumer is not denied the protection of compelling provisions of his state of residence (e.g. KSchG). This must be pointed out in the right choise clauses in the general terms and conditions.
These special arrangements for consumer contracts do not apply to
- contracts for services provided exclusively in a state other than that of the ordinary place of residence of the consumer (e.g. a contract with a hotel or other tourist accommodation);
- contracts of carriage (except package tour contracts);
- contracts concerning a right in rem to immovable objects or the leasing or letting of immovable objects (with the exception of contracts of partial rights of use of properties).
Further information on the law applicable to online shopping, the right of withdrawal from online orders and out-of-court dispute resolution for consumers is also available at oesterreich.gv.at.
- Consumer Contracts and Guarantees (→ Your Europe)
- Shopping online (→ European Consumer Centre Austria)
Responsible for the content: Federal Ministry of Social Affairs, Health, Care and Consumer Protection