According to a press release of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband; ‘vzbv’) dated 19 July 2017, the German Federal Supreme Court (‘FSC’) issued a judgment that held it is unreasonable for consumers if the only payment method offered free of charge is ‘Sofortüberweisung’ (FSC, judgment of 18 July 2017, case no. KZR 39/16; not yet published). This means that at least one customary means of payment other than ‘Sofortüberweisung’ needs to be offered to the consumer free of charge.

At the same time, the FSC clarified that the business model of ‘Sofortüberweisung’ is permitted.

Underlying case

vzbv sued the provider of a German online flight booking portal (‘Booking Portal’). On the Booking Portal, only the payment method ‘Sofortüberweisung’ was free of charge. A consumer who selected to pay via other means of payment, such as credit cards, was charged with an additional credit card fee. This concept is used by a significant number of online shops and platforms that offer their goods and services to German consumers.

vzbv’ legal action aimed to secure a permanent injunction against the Booking Portal, to prohibit it from offering only one payment method free of charge, namely, the payment initiation service ‘Sofortüberweisung’, which requires the consumer to provide their online banking PIN and a transaction number.

Although the District Court in Frankfurt am Main made an adverse decision against the Booking Portal, the Court of Appeal in Frankfurt am Main dismissed vzbv’s action, stressing that ‘Sofortüberweisung’ is a widespread means of payment. Now, finally, the FSC has upheld the first instance decision from the District Court in Frankfurt am Main.

Legal background

Under Section 312a(4) of the German Civil Code (Bürgerliches Gesetzbuch – ‘BGB’) an agreement under which a consumer is obligated to pay a fee for the use of a certain payment method by way of fulfilling his/her contractual obligations will be void if (1) no customary and reasonable payment method is available to the consumer that is free of charge, or (2) the fee agreed exceeds the cost borne by the trader for the use of such means of payment.

According to vzbv’s press release, the FSC takes the view that a certain means of payment will not be “reasonable” in the meaning of Section 312a(4) BGB, if it requires the consumer to breach his/her contractual obligation with his/her bank, namely, not to disclose sensitive data, such as his/her online banking PIN and transaction numbers, to a third party.

Conclusion

The FSC judgment will have an impact on companies that offer B2C services to German consumers. Companies are called on to ensure that consumers have the option to use at least one other means of payment free of charge.

However, the impact of this judgment will only be for a limited period: once EU Regulation 2015/2366 on payment services in the internal market (PSD2) has been transposed into German law by the ‘Gesetz zur Umsetzung der Zweiten Zahlungsdiensterichtlinie’, surcharges for the use of payment cards will be prohibited anyway. This prohibition will apply from 13 January 2018.