Austrian OGH on Service Fee for Food Delivery Services

Apr 18, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to decide whether a food delivery service can charge a service fee.

The defendant operates a delivery platform, consisting of a mobile app and a website. Through this platform, companies (the defendant’s partner companies) can offer the preparation and delivery of food and beverages of all kinds, as well as products that are normally available in retail stores, for sale online. Customers can place their orders on the platform. The contract for the purchase of the goods is entered into directly between the customer and the partner company. The defendant company brokers the goods of its partner retailers to customers. It charges the customer a service fee of EUR 0.25 for each order, which is provided for in the defendant company’s general terms and conditions:

‘7.5 SERVICE FEES [The defendant] charges a service fee for each order for the services provided. This service fee is used to improve our service as a whole, including providing a wider choice of suppliers and ongoing customer service. … The applicable service fee will be displayed during the ordering process.’

The plaintiff, an association with legal standing, sought an injunction against the use of the disputed clause and an equivalent clause.

The court of first instance granted the application. The court of appeal dismissed the action. The OGH, however,  confirmed the decision of the court of appeal.

According to the wording of the clause, the service fee is the customer’s remuneration ‘for the services provided’. The defendant’s service to the customer is the brokerage of goods from partner companies for which the defendant provides a platform and app. A user of an intermediary platform would normally expect to pay a fee for its use. It is therefore neither surprising nor unusual for an intermediary to charge a fee for its services. Also, the clause is not non-transparent, as the specific service fee is shown to the customer at the end of the ordering process.

OGH 9 Ob 116/24k (13 February 2025)