The German Federal Court of Justice has announced allowing German merchants to charge an extra fee for online payments with payment providers such as PayPal. Charges for paying by bank transfer, direct debit or credit card are prohibited by law. Here, however, money is required for the involvement of a service provider who takes on additional services, for example checking the creditworthiness.
The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law among other things, decided today that companies may charge their customers a fee for payment by means of Sofortüberweisung (which is part of the Swedish payment service provider Klarna) or PayPal if the fee is solely for the use of this means of payment and not for any related payment Use of direct debit, bank transfer or credit card is required.
Facts and previous course of the process :
The plaintiff is the headquarters for combating unfair competition. The defendant organizes long-distance bus trips and advertises them on the Internet. It offers its customers four payment options, namely payment by debit card, credit card, instant transfer or PayPal. When choosing the payment method „Sofortüberweisung” and „PayPal”, the defendant charges an additional fee depending on the respective fare.
The plaintiff sees this as a violation of § 3a UWG in conjunction with § 270a BGB and claims the defendant to cease and desist.
The regional court upheld the claim. In response to the defendant’s appeal, the appellate court dismissed the action.
Decision of the Federal Court of Justice:
The plaintiff’s revision, approved by the court of appeal, was unsuccessful. By demanding an additional fee for the payment via Sofortüberweisung or PayPal, the defendant did not violate Section 270a of the German Civil Code (BGB).
According to § 270a sentence 1 BGB, an agreement that obliges the debtor to pay a fee for the use of a SEPA core direct debit, a SEPA corporate direct debit, a SEPA transfer or a payment card is ineffective. For the use of payment cards, according to Section 270a sentence 2 BGB, this only applies to payment transactions with consumers, to which Chapter II of Regulation (EU) 2015/751 on interchange fees for card-based payment transactions is applicable.
If the payment method „instant transfer” is selected, a transfer is made from the customer’s account to the recipient’s account. This is a SEPA transfer within the meaning of § 270a sentence 1 BGB, even if this transfer is not initiated by the customer but by the operator of the payment service „Sofortüberweisung” on behalf of the customer. According to the findings of the appellate court, the payment required by the defendant when choosing the „instant transfer” payment option is not required for the use of this transfer, but for the activation of the payment initiation service, which provides other services in addition to initiating the payment. For example, he checks the creditworthiness of the payer and informs the payee of the result of this check,
A SEPA transfer or a SEPA direct debit within the meaning of § 270a sentence 1 BGB or a card-based payment process within the meaning of § 270a sentence 2 BGB can also occur when the payment option „PayPal” is selected if the payer’s PayPal account does not have a has sufficient credit and must be topped up by bank transfer, direct debit or credit card debit. In this case, too, according to the findings of the appellate court, the defendant does not demand any payment from its customers for the use of these means of payment, but only for the use of the payment service provider „PayPal”, which transfers the payment from the payer’s PayPal account to the PayPal account of the Of the recipient by transferring e-money.
The prohibition of agreeing a fee for the use of a direct debit, transfer or payment card within the meaning of Section 270a of the German Civil Code (BGB) does not prevent the charging of a fee for additional services.
PayPal is gaining more users in Germany
The background to the dispute is an EU directive that has also been in law in Germany since 2018 and supplements the civil code on the issue in question. There it says that agreements on fees for the use of cashless means of payment are ineffective – for example for bank transfers, direct debits and credit cards. The BGH has now decided that this rule does not apply to payments via PayPal and Sofortüberweisung.
Peter Breun-Goerke, attorney at the competition headquarters, welcomed the fact that „on the basis of the decision of the BGH, companies can now consider whether and how to deal with these costs, ” according to handelsblatt.com. However, he pointed out to current complaints „that companies continue to charge the costs for a payment via PayPal during the payment process”.
In Germany, PayPal has a good 29 million active users. Almost 27 million of them are likely to be consumers, the rest of them merchants who offer PayPal as a payment method.
The relevant regulations are:
Section 3a UWG
Anyone who violates a legal provision that is also intended to regulate market behavior in the interests of market participants and the violation is likely to noticeably affect the interests of consumers, other market participants or competitors is acting unfairly.
§ 270a BGB
An agreement by which the debtor is obliged to pay a fee for the use of a SEPA core direct debit, a SEPA corporate direct debit, a SEPA transfer or a payment card is ineffective. Sentence 1 only applies to the use of payment cards for payment transactions with consumers if this is referred to in Chapter II of Regulation (EU) 2015/751 of the European Parliament and of the Council of April 29, 2015 on interchange fees for card-based payment transactions (OJ L 123 of 19.5 .2015, p.1) is applicable.