D: fee for payment via "Immediate Transfer" or "PayPal" is permissible

Jul 7, 2021 Benn-Ibler Rechtsanwälte

On March 25, 2021, the German Federal Court of Justice (BGH) ruled in a final decision that charging a fee for cashless payments via Immediate Transfer (Sofortüberweisung) or PayPal is legally permissible. There was no violation of Section 3a of the Unfair Competition Act (UWG) in conjunction with Section 270a of the German Civil Code (BGB). Requiring payment does not constitute unfair competition.

The Central Office for Combating Unfair Competition had sued for an injunction against the charging of the user fee.

The defendant, an organizer of long-distance bus tours, advertised these forms of payment on the internet and only charged a fee for the payment methods of Immediate Transfer and PayPal, but not for payments by credit and debit card.

According to Section 270a BGB, an agreement obliging the debtor to pay a fee for the use of a SEPA direct debit or a payment card is invalid. Since the legal regulation constitutes a market conduct regulation pursuant to Section 3a of the German Unfair Competition Act (UWG), a violation of Section 270a BGB would constitute anticompetitive conduct.

The payment method Immediate Transfer constitutes such a SEPA direct debit, even if the payment is not made by the customer himself but on his behalf through the payment service "Immediate Transfer”.

Nevertheless, there is no violation of the law, since the fee is paid exclusively for the use of Immediate Transfer’s service and its additional services, such as credit checks, and not for the use of the payment method itself.

The situation is similar with the payment method PayPal. This also falls under Section 270a sentence 1 BGB since a SEPA direct debit is necessary if the credit balance of the PayPal account is too low for the transaction. Also in this case the fee is charged for the involvement of the service PayPal and the transfer of the e-money from the payer to the recipient.

Consequently, in both cases, a fee is charged for the payment initiation services “Immediate Transfer" and "PayPal" and not for the use of the payment method itself.

BGH, I ZR 203/19 (25.03.2021)