When concluding an electricity contract, multiple payment options must be available. It is not sufficient if only the direct debit procedure (SEPA direct debit mandate) is offered for individual tariffs. This was decided by the 6th Civil Senate of the Higher Regional Court of Cologne upon the electricity provider's appeal, thereby confirming the first-instance judgment of the Regional Court of Cologne.
The electricity provider had offered various tariffs with different conditions and payment options. However, for online orders of the 'Strom Basic' tariff, it mandatorily required consumers to provide account details and issue a SEPA direct debit mandate. Other payment options were available for other tariffs. The plaintiff consumer protection agency challenged this practice, citing § 41 para. 2 S. 1 of the Energy Industry Act (EnWG). According to this law, household customers must be offered various payment options before concluding a contract. Nevertheless, the electricity provider considered its practice permissible, arguing that different payment options were available across its various tariffs. It contended that since over 90% of household customers already opted for direct debit, mandating this payment method would simplify payment transaction monitoring and allow the cost savings to be passed on to customers in the advantageous basic tariff.
The judges were not convinced by this argument. The Higher Regional Court of Cologne confirmed the decision of the Regional Court of Cologne and ordered the electricity provider to cease its previous practice. In its reasoning, the 6th Civil Senate essentially stated that, according to the provision of § 41 para. 2 S. 1 EnWG – which is based on European law – various payment options must be offered for each tariff. This derives from the wording and the overall context of the norm. It would constitute an undue disadvantage if certain, otherwise provided payment methods remained inaccessible to specific customer groups. Since customers without a bank account could not participate in the direct debit procedure, they would be unduly disadvantaged by the payment modalities stipulated by the electricity provider. They would be excluded from the outset from the particularly affordable basic tariff, even though these are typically low-income customers. The price advantage over other tariffs is not solely based on savings from the SEPA direct debit procedure, but also on additional services provided by the electricity supplier or on differing conditions in other tariffs. The legitimate economic interests of the electricity provider would be safeguarded by allowing it to pass on to customers the additional costs arising from more complex payment methods. However, according to § 312a para. 4 BGB, the charge must not exceed the costs incurred by the entrepreneur for using the payment instrument.
The Senate did not permit the appeal, as the judgment concerns the trial court's application of generally accepted principles of interpretation and legal application 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 Higher Regional Court of Cologne
Goldberg Attorneys at Law 2017
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
