The trend towards shopping on the internet continues unabated. Many entrepreneurs and online merchants want to offer their customers the greatest possible flexibility in the choice of payment methods and payment procedures. Some of the payment procedures, such as payment by Paypal and by "Sofortüberweisung", offer both parties additional security. However, this additional security costs the traders money. According to a recent decision by the Federal Court of Justice, traders are allowed to charge their customers this money.
Why did the BGH have to deal with Paypal and "Sofortüberweisung"?
The defendant organises long-distance bus trips and offers its customers payment options by EC card, credit card, "Sofortüberweisung" and Paypal. The defendant charges a separate fee for payment by "Sofortüberweisung" and Paypal. The Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition) considered this to be a violation of § 3a UWG in conjunction with § 270a BGB. § Section 270a of the German Civil Code (BGB) and issued a warning to the defendant without success.
The plaintiff was unsuccessful in three instances.
What does § 270a BGB say?
According to § 270a of the German Civil Code (BGB), no fee may be charged for a payment by SEPA Core Direct Debit, SEPA Direct Debit, SEPA Credit Transfer or Payment Card. If a merchant violates this, it is at the same time a violation of competition law according to § 3a UWG due to a breach of law.
Are payments via Paypal or "Sofortüberweisung" transfers?
With an "Sofortüberweisung" the matter is clear: it is a SEPA transfer. However, from the account of the service provider of "Sofortüberweisung" to the account of the merchant (on behalf of the customer). It is similar with Paypal. Here, too, Paypal transfers money to the recipient's Paypal account on behalf of the customer.
Why can a fee be charged for payments via Paypal or "Sofortüberweisung"?
According to the BGH's legal opinion, the defendant does not charge a fee for the transfer made by Paypal or "Sofortüberweisung", but for the additional services of these providers. In both cases, the providers check the creditworthiness of the customers and transmit the result of this credit check to the merchant. Many merchants use a positive credit check as an opportunity to provide their service before payment is made. This quick processing is probably also what many customers want.
Has it now been finally clarified that a fee can be charged for payments via Paypal or "Sofortüberweisung"?
In principle, yes. You can now decide whether you charge your customers additional fees for payment by "Sofortüberweisung" or by Paypal openly and transparently. The BGH's decision should also be transferable to other payment methods where the fee is charged for additional services.
But be careful. You must always carefully check whether the charging of a fee is covered by § 270a BGB or not.
Source: BGH, judgment of 25.03.2021, ref. I ZR 203/19; previous instances: OLG Munich, judgment of 10.10.2019, ref. 29 U 4666/18; LG Munich I, judgment of 13.12.2018, ref. 17 HK 7439/18.
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GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
