In a judgment handed down on 23 August 2018, the Third Civil Senate of the Federal Court of Justice confirmed the decisions of the lower instances by which a company selling tickets for artistic events (e.g. concerts, theatre, shows, cabaret) was prohibited from using two price clauses in its general terms and conditions of business in response to an action brought by the Verbraucherzentrale Nordrhein-Westfalen e.V. (consumer association of North Rhine-Westphalia).
Facts:
The defendant sells tickets via the internet, partly as an organiser, partly as an agent and partly as a commission agent (§ 383 HGB). In the course of the ordering process, a so-called "normal price" is indicated for each ticket with the note: "Indicated ticket prices incl. VAT, advance booking fee, booking fee of max. € 2.00 plus service & shipping costs". After the customer has placed the ticket in the virtual shopping basket, he/she is offered a choice of shipping options. For the shipping method "premium shipping", the defendant charges € 29.90 "incl. handling fee" in addition to the ticket price. If the customer chooses the option "ticketdirect - the ticket for self-printing" (so-called print@home option), in which the defendant provides him/her with the ticket as a pdf file via a link, its price is increased by a "service fee" of € 2.50. The calculation of these fees is based on two factors specified in the contract. The calculation of these fees is based on two price clauses contained in the defendant's general terms and conditions.
Course of the process:
The District Court prohibited the defendant from using the following price clauses:
"Premium shipping29,90 EUR
incl. handling fee"
and
"ticketdirect - the ticket
Print out your ticketdirect easily and conveniently yourself! 2,50 EUR"
The Higher Regional Court dismissed the defendant's appeal.
The decision of the Federal Supreme Court:
The Federal Supreme Court (BGH) dismissed the appeal of the defendant against the judgement of the Higher Regional Court (OLG) Bremen, which had been admitted by the Court of Appeal. The Senate assessed the two clauses used by the defendant as ancillary price agreements. Thus, in contrast to agreements on the event price itself, they are subject to content control according to the law on general terms and conditions.
The clauses used by the defendant deviate from the basic idea of § 448 para. 1 BGB, at least insofar as the defendant concludes sales contracts with customers via the cards as a commission agent in its own name. According to this provision, in the case of a sale by delivery to a place other than the place of performance, the buyer only has to bear the actual delivery costs (e.g. postage, packaging and insurance, if applicable), but not the seller's internal business expenses for making the goods available for delivery.
By deviating from the statutory provision, the disputed clauses unreasonably disadvantage the buyers contrary to the principles of good faith (§ 307 para. 1 sentence 1 BGB). According to the case law of the Federal Court of Justice, the user of general terms and conditions of business may not, in principle, demand a separate fee for activities which he is obliged to perform by law or - as in the case of mail order purchases - by way of an ancillary contract or which he performs predominantly in his own interest.
It is true that in individual cases it may be justifiable not to include in the general price calculation the business expenses incurred for different types of shipping, which may vary considerably, but to provide for different shipping charges in the General Terms and Conditions. However, the defendant did not present any facts at first instance that could support the assumption of a special business expense for the so-called premium shipping; on the contrary, it still took the position on appeal that it did not have to disclose its calculation. Furthermore, it was not recognisable which concrete reimbursable expenses were claimed with the "service fee" of € 2.50 for the "ticketdirect" option; with this method of dispatch, the customer prints out the ticket himself after it has been transmitted electronically, so that neither postage nor packaging costs are incurred. Since, according to the findings of the Court of Appeal, which are not challenged by the appeal, the transmission of the link to the pdf file, which can be printed out as an admission ticket, to the customer by email is automated in the electronic infrastructure provided by the defendant for the implementation of its business model, it remains unclear which business expenses are to be remunerated by this.
The clauses are also invalid insofar as they refer to the defendant's brokerage and self-distribution business, since the reduction of objectionable clauses to a still permissible content is ruled out if - as is the case here - they are not divisible in terms of language and content.
Judgment of the BGH of 23 August 2018 - III ZR 192/17
Lower courts:
Bremen Regional Court - Judgment of 31 August 2016 - 1 O 969/15
Bremen Higher Regional Court - Judgment of 15 June 2017 - 5 U 16/16
Source: Press release of the Federal Court of Justice of 24.08.2018
