The BGH decision is the final point of a long legal dispute between FlixMobility and the Centre for Protection against Unfair Competition (Wettbewerbszentrale) as to whether it is permitted to surcharge for payments made via PayPal or Sofortüberweisung. The BGH has now ruled that Sec. 270a German Civil Code (BGB) does not prohibit surcharging.
The BGH decision did not come as a surprise, as the court of appeals, the OLG Munich (judgment of 10.10.2019 – 29 U 4666/18) had already ruled that the prohibition of surcharging in Sec. 270a BGB does not apply to payments made via PayPal or Sofortüberweisung. What was more surprising was the decision of the court of first instance, the LG München I (judgment of 13.12.2018 – 17 HK O 7439/18), which found that PayPal and Sofort payments were ultimately made by means of SEPA direct debit or credit transfer and were therefore covered by the scope of application of Sec. 270a BGB. This is factually incorrect, and the reasoning did not take into account that PayPal and Sofortüberweisung are payment services of a completely different nature.
What is it about in detail?
We already dealt with Sec. 270a of the German Civil Code in detail on PayTechLaw some time ago. Therefore, only a short repetition here: Section 270a BGB prohibits a creditor from taking a surcharge for certain payment methods when payments are made by the debtor if these are payments that are subject to the SEPA Regulation (i.e. SEPA Direct Debit or SEPA Credit Transfer) or subject to the Interchange Fee Regulation (i.e. payments with consumer credit cards from VISA and MasterCard).
Why is PayPal not covered by the surcharging ban?
PayPal’s payment service is e-money sent from a PayPal account (the payer’s) to the PayPal account of the recipient (the merchant). The PayPal payment itself is therefore not a SEPA payment and also not a card payment. The fact that often the e-money from PayPal is purchased by SEPA direct debit or credit transfer as well as credit card is to be distinguished from the payment that is then done via PayPal. PayPal itself would be prohibited by Sec. 270a BGB from surcharging for the acceptance of the aforementioned payment methods, but not the merchant. In addition, an e-money balance in a PayPal account may not only be created by “uploading” via payments by credit card and direct debit, but an account holder may also receive PayPal payments from others and thereby create an e-money credit on the PayPal account.
In any case, however, the BGH’s finding that surcharging is permitted for payments via PayPal does not have a major practical impact. This is because PayPal explicitly prohibits surcharging in its terms and conditions and only merchants who may have old contracts are exempt from PayPal’s surcharging ban.
Why does Sofortüberweisung not fall within the scope?
Sofortüberweisung is a payment initiation service. This means that although a SEPA transfer is initiated via Sofort, Sofort does not itself execute the SEPA credit transfer. The payment service that Sofort (or today Klarna) offers is the initiation of a payment (submission of a payment order), but not the credit transfer itself, which is executed by the payer’s bank. Here, too, the BGH decided, like the court of appeals, that such a service is not covered by Sec. 270a BGB because the payment service is different from a SEPA payment.
Conclusion: Legally correct, politically wrong, but wanted by the legislator
The ruling of the Federal Court of Justice is legally correct. Even if the reasons for the judgement are not yet available, it can be assumed that the BGH followed the reasoning of the court of appeals. It is legally correct and important to clarify that different payment services are involved.
In terms of legal policy, however, one can of course agree with the Wettbewerbszentrale that it would be better if the surcharging ban applied to all payment methods. However, the legislator explicitly did not want this, even though there would have been the opportunity to bank outsourcing entirely in the legislative process at the time.
Sec. 270a BGB is based on Art. 62 para. 4 PSD2, according to which the member states must ensure that no charges are applied in any case for the use of payment methods that are subject to the SEPA Regulation or the IF Regulation. However, this is only a minimum requirement; it would also have been possible for the German legislator to prohibit surcharging altogether, as has happened in other EU countries. However, the legislative materials, especially the discussions in the Finance Committee, show that the legislator deliberately decided against this:
“With regard to the prohibition of surcharging, it was decided after intensive consultations that the draft law would not be changed in this respect and that it would not be extended to 3-party systems and PayPal. According to statements by the federal government, however, it is possible under both civil and competition law to agree such a surcharging ban contractually with the respective merchants. The aim is that in the end, if possible, no surcharges can be demanded. ” (BT Drs. 18/12568, p. 152).
The fact that payment service providers such as PayPal and Klarna for Sofortüberweisung do not always succeed in agreeing this with all merchants is shown by the legal dispute that has now come to an end with the BGH decision.
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