An online shop operator may offer payment methods for which additional costs are incurred. However, the permissibility of such chargeable payment methods is subject to specific conditions pursuant to Section 312a (4) of the German Civil Code (BGB).
Pursuant to Section 312a (4) of the German Civil Code (BGB), an online shop operator must offer its customers, who are consumers, a common and reasonable free payment option, and the agreed surcharge must not exceed the costs incurred by the online shop operator for the use of this payment method. Only then may the online shop operator offer a payment method for which additional costs are incurred.
It is disputed whether the “Sofortüberweisung” payment method is such a “common and reasonable free payment option”.
The Frankfurt am Main Regional Court had denied this.
The Frankfurt am Main Higher Regional Court has now affirmed this with the following arguments:
“...Pursuant to Section 312a (4) No. 1 of the German Civil Code (BGB), an agreement by which a consumer is obliged to pay a fee for using a specific payment method to fulfill their contractual obligations is invalid if no common and reasonable free payment option is available to the consumer. The background to this provision is the fundamental principle of dispositive law, according to which every legal subject must fulfill their legal obligations without being able to demand a separate fee for doing so, especially when it comes to merely accepting the performance owed by the contractual partner (BGH, judgment of 20.05.2010 Xa ZR 68/09 para. 42). ...
The Regional Court found that there are no doubts regarding the commonality of the payment method (Note: Sofortüberweisung). ...
The payment option through the use of the payment initiation service (Note: Sofortüberweisung) also proves to be reasonable within the meaning of Section 312a (4) No. 1 of the German Civil Code (BGB). ...
Finally, to the extent that the plaintiff bases the unreasonableness on the argument that the customer would have to enter into an unreasonable contractual relationship with a third party by using the intervener's input mask, this argument is also unconvincing. ...
Finally, to the extent that the plaintiff raises data protection concerns, these likewise cannot substantiate an unreasonable payment method resulting from the involvement of the intervener, as defined by § 312a para. 4 no. 1 BGB. …… “
Source: Higher Regional Court Frankfurt a.M., Judgment dated august 24, 2016, file number 11 U 123/15
Goldberg Attorneys at Law 2016
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
