The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law among other things, has ruled that a consumer association cannot use a claim for removal under competition law to demand the repayment of money withheld on the basis of invalid general terms and conditions to the consumers concerned.
Facts:
The plaintiff is the umbrella organization of German consumer associations. The defendant organized a festival. To pay at the festival site, visitors could purchase a wristband and top it up with money. The defendant offered a refund of unused amounts of money in its terms of use as follows: "A refund fee of €2.50 is due when the remaining credit is paid out by the event portal after the festival".
The plaintiff considers the levying of such a reimbursement fee (payout fee) to be unfair and claims against the defendant in particular for repayment of the amounts withheld to the consumers concerned.
Process history so far:
The Regional Court dismissed the action. The appeal lodged by the plaintiff was dismissed by the Court of Appeal. With the appeal allowed by the Court of Appeal, the plaintiff continues to pursue his claims.
Decision of the Federal Supreme Court:
The plaintiff's admissible appeal is unsuccessful.
As the Court of Appeal rightly assumed, a claim for removal cannot be derived from Section 1 UKlaG. This provision only establishes a claim for injunctive relief, but not for removal.
The plaintiff is also not entitled to a claim against the defendant for the repayment of the withheld payout fee to the affected consumers pursuant to Section 8 (1) sentence 1 case 1 from the point of view of a breach of law pursuant to Sections 3, 3a UWG in conjunction with Section 307 (1) sentence 1, (2) BGB.
The Court of Appeal correctly assumed that the defendant's terms of use are general terms and conditions and that the clause contained therein regarding the charging of a payout fee of € 2.50 when unused credit is paid out is invalid pursuant to Section 307 (1) sentence 1, (2) no. 1 BGB. This is because the defendant does not provide an independent remunerable service with the reimbursement of unused amounts of money, but rather fulfills an existing contractual obligation. The Court of Appeal also correctly held that the infringement of Sections 3, 3a of the German Act Against Unfair Competition (UWG) is likely to significantly impair the interests of consumers, as they could be deterred by the clause from asserting repayment claims against the defendant.
The Court of Appeal rightly ruled that the plaintiff cannot use the claim for elimination under competition law to demand repayment from the defendant of the payout fee withheld on the basis of the invalid clause to its customers. Such a claim is not consistent with the system of collective legal protection under the applicable law. In the Act against Unfair Competition, the legislator has provided for a fault-based profit absorption claim in favor of the federal budget and a consumer compensation claim that is also fault-based. In 2023, the legislator introduced the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz), which enables qualified consumer associations to assert consumer claims for performance against traders. The resulting concept of collective legal protection would be undermined by a no-fault claim for removal by qualified consumer associations derived from Section 8 (1) sentence 1 case 1 UWG, with which a trader could be obliged to repay the amounts of money withheld by it at the expense of a large number of consumers to the consumers concerned.
Judgment of the BGH dated September 11, 2024 - I ZR 168/23
Lower courts:
Rostock Regional Court - Judgment of December 15, 2020 - 3 O 1091/19
OLG Rostock - Judgment of november 15, 2023 - 2 U 15/21
