In a judgment announced on august 23, 2018, the Third Civil Senate of the Federal Court of Justice affirmed the decisions of the lower courts, which prohibited a company selling tickets for artistic events (e.g., concerts, theater, shows, cabaret) from using two price clauses in its General Terms and Conditions, following a lawsuit by the North Rhine-Westphalia Consumer Protection Center e.V.
Facts of the case:
The defendant sells tickets online, acting partly as an organizer, partly as an intermediary, and partly as a commission agent (§ 383 German Commercial Code (HGB)). During the ordering process, a so-called 'normal price' is stated for each ticket, with the note: 'Displayed ticket prices include statutory VAT, advance booking fee, booking fee of max. €2.00 plus service & shipping costs'. After the customer places the ticket in the virtual shopping cart, shipping options are presented. For the 'Premium Shipping' option, the defendant charges an additional €29.90 'incl. processing fee' on top of the ticket price. If the customer selects the 'ticketdirect – the print-at-home ticket' option (the so-called print@home option), where the defendant provides the ticket as a PDF file via a link, its price increases by a 'service fee' of €2.50. The calculation of these fees is based on two price clauses contained in the defendant's General Terms and Conditions.
Procedural History:
The Regional Court prohibited the defendant from using the following price clauses:
Premium Shipping €29.90
incl. processing fee
and
ticketdirect – the ticket
for self-printing. Simply and conveniently print your ticketdirect yourself! €2.50
The Higher Regional Court rejected the defendant's appeal.
The decision of the Federal Court of Justice:
The Federal Court of Justice rejected the defendant's appeal on points of law, which had been admitted by the appellate court, against the judgment of the Higher Regional Court of Bremen. The Senate classified the two clauses used by the defendant as ancillary price agreements. Consequently, unlike agreements on the event price itself, they are subject to content review under the law of General Terms and Conditions.
The clauses used by the defendant deviate from the fundamental principle of § 448 para. 1 German Civil Code (BGB), at least insofar as the defendant concludes purchase agreements with customers for the tickets in its own name as a commission agent. According to this, in a distance selling purchase, the buyer is only required to bear the actual shipping costs (e.g., postage, packaging, and possibly insurance), but not the seller's internal business expenses for preparing the goods for shipment.
The disputed clauses disadvantage buyers in an unreasonable manner by deviating from the statutory provision, contrary to the principles of good faith (§ 307 para. 1 sentence 1 German Civil Code (BGB)). According to the jurisprudence of the Federal Court of Justice, the user of General Terms and Conditions is generally not permitted to demand a separate fee for activities to which they are legally or – as in distance selling – contractually obliged, or which they perform predominantly in their own interest.
While it may be justifiable in individual cases not to include the potentially very different business expenses incurred for various shipping methods in the general price calculation, but rather to stipulate different shipping fees for them in the General Terms and Conditions, the defendant did not present any facts in the lower courts regarding the business expenses for the so-called premium shipping that could support the assumption of special business expenses; instead, it maintained in the appellate proceedings that it was not required to disclose its calculations. Furthermore, it was not discernible which specific reimbursable expenses were claimed with the €2.50 'service fee' for the 'ticketdirect' option; with this shipping method, the customer prints the ticket themselves after electronic transmission, meaning neither postage nor packaging costs are incurred. Moreover, since, according to the findings of the appellate court which were not challenged by the appeal, the transmission of the link to the printable PDF ticket file via email to the customer occurs automatically within the electronic infrastructure maintained by the defendant for the implementation of its business model, it remains unclear what business expenses are intended to be compensated by this.
The clauses are also ineffective insofar as they relate to the defendant's intermediary and direct sales business, as the reduction of objectionable clauses to a still permissible content is excluded if they – as in this case – are not linguistically and substantively divisible.
Judgment of the Federal Court of Justice of august 23, 2018 – III ZR 192/17
Lower Courts:
Regional Court of Bremen – Judgment of august 31, 2016 – 1 O 969/15
Higher Regional Court of Bremen – Judgment of June 15, 2017 – 5 U 16/16
Source: Press release of the Federal Court of Justice dated august 24, 2018
