When concluding an electricity contract, there must be several payment options. It is not sufficient if only the direct debit procedure (SEPA direct debit mandate) is offered for individual tariffs. This is what the 6th Civil Senate of the Higher Regional Court of Cologne decided on the appeal of the electricity provider, thus confirming the first-instance ruling of the Regional Court of Cologne.
The electricity provider had offered different tariffs with different conditions and different payment options. However, when ordering the "Electricity Basic" tariff online, it required consumers to provide bank account details and a SEPA direct debit mandate. Other payment options were also offered for other tariffs. The plaintiff, the consumer association, took action against this practice, citing section 41 , paragraph 2 , sentence 1 of the Energy Industry Act (EnWG). According to this law, household customers must be offered various payment options before concluding a contract. The electricity provider nevertheless considered its practice permissible and argued that different payment options would exist for the different tariffs. Since more than 90% of household customers opted for direct debit anyway, the specification of this payment method could simplify the monitoring of payment transactions and pass on the saved costs to the customers in the favourable basic tariff.
The argumentation did not convince the judges. The Cologne Higher Regional Court confirmed the decision of the Cologne Regional Court and ordered the electricity provider to refrain from the previous practice. In its reasoning, the 6th Civil Senate essentially stated that according to the provision of § 41 para. 2 sentence 1 EnWG - which is based on European law - different payment options must be offered for each tariff. This was clear from the wording and the overall context of the provision. It would be an unreasonable disadvantage if certain payment methods, which are in themselves provided for, remained closed to individual customer groups. Since customers who do not have an account could not participate in the direct debit procedure, they would be unreasonably disadvantaged by the payment methods provided for by the electricity supplier. They would be excluded from the outset from the particularly low-priced basic tariff, although these would generally be low-income customers. The price advantage compared to other tariffs was not only based on the savings due to the SEPA direct debit procedure, but also on further services of the electricity provider or on different conditions in other tariffs. The justified economic interests of the electricity provider would be safeguarded by the fact that it was allowed to pass on to the customers the additional costs arising from more costly payment methods. According to Section 312a (4) of the German Civil Code (BGB ), however, the fee may not exceed the costs incurred by the business through the use of the payment method.
The Senate did not allow the appeal because the judgement concerns the transfer of generally recognised principles of interpretation and application of the law to an individual case.
Judgment of the Regional Court of Cologne dated August 16, 2016, file number 33 O 2/16
Judgment of the Cologne Higher Regional Court of March 24, 2017, file number 6 U 146/16
Source: Press release of the Cologne Higher Regional Court
Goldberg Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
