Means of payment data

Supreme Court overturns seven Jö Bonus Club clauses

The Supreme Court has classified seven clauses in the terms and conditions of the jö Bonus Club as inadmissible, including the exclusion of a legal claim to discounts and bonus points. Customers must have a right to the benefits and services of the bonus program, as they "paid" for them with their data.

The jö Bonus Club allows members to collect "Ös" as bonus points when shopping at participating partner companies, including numerous large retail chains, and redeem them for benefits such as discounts. Participation is generally free of charge for members.

However, several clauses in the general terms and conditions of the bonus program exclude, among other things, a legal claim of consumers to discounts and bonus points, which is why the Association for Consumer Information (VKI) filed a lawsuit against Unser Ö-Bonus Club GmbH in 2020 on behalf of the Ministry of Social Affairs due to 14 clauses.

The judgment of the court of first instance is not yet available for five clauses relating to data protection provisions, the association reported on Thursday. In a partial judgment, the Supreme Court has now qualified seven clauses as inadmissible, while the court of appeal in the second instance has already made a final decision on two others.

Means of payment data
The Supreme Court made it clear that consumers "pay" for the use of the club by transmitting their personal data - for example their shopping behavior. According to the Supreme Court, clauses according to which members are not legally entitled to discounts and bonus points constitute a massive violation of users' interests and should be considered immoral. The promised service is therefore grossly disproportionate to the service provided in return.

Further clauses classified by the Supreme Court as grossly disadvantageous concern the obligation to hand over the jö card at any time, although the "analogous" possibility of use is linked to the jö card. Furthermore, the option granted to the operator to terminate the contract without notice is inadmissible if the underlying transaction is reversed three times a year after bonus points have been redeemed - for example in the event of a warranty claim or withdrawal from a distance selling transaction.

"The Supreme Court strengthens consumer protection in the area of 'paying with data' and, from a consumer perspective, provides the first significant clarifications on the equivalence of services in customer loyalty programs," commented Petra Leupold, Head of the Complaints Department at VKI.

"Discounts in the interests of the company"
The majority of the clauses complained about had already been amended in advance in 2020 "in the interests of consumers", Jö-Club announced. They are no longer used in this form. The company is currently examining whether the remaining objectionable clauses can be removed or how they can be amended in the best interests of consumers, it said in a written statement.

"It should be noted that the basis of 'Unser Ö-Bonus Club GmbH' is the provision of discounts and that this is and will always be in the interests of the company, both in digital and analog form."