Service fee: German Federal Court of Justice confirms prohibition of additional fees for common payment methods

When booking flights on the internet, consumers must have the option to use a common and reasonable payment method free of charge, cf. Art. 312a (4) No. 1 BGB (German Civil Code). An inadmissible, additional payment method fee is charged if the selection of another than the default payment method triggers a so-called service fee and if the default setting is a credit card issued by the website operator in cooperation with a credit institution. This was already decided by the BGH last year (BGH dated August 24, 2021 – file no. X ZR 23/20). 

Now, the BGH once again had to deal with a “service fee” for flight bookings. Although such new decision’s (BGH dated July 28, 2022 – file no.: I ZR 205/20) focus was on the procedural requirements – in particular the requirements for a petition for an injunction’s specificity – the BGH did not deviate from its position in terms of substantive law. Therefore, case law on the admissibility of additional fees for the selection of individual payment methods is still applicable. It is therefore worth taking another look at the BGH ruling of August 2021.

The facts
The defendant operates a website for flight bookings and charges its customers a fee (service fee) for each booking. If the customer uses the payment method preset by the defendant (“T. MasterCard Gold”) for payment, a discount in an amount equal to the fee is granted in each case. The airfares shown already consider the discount. If the customer selects a payment method other than the default payment method, the correspondingly (substantially) higher price is shown. The Federal Association of Consumer Centers (VZBZ) filed a complaint against this.

Reasoning of the court
Although the defendant had not charged a direct fee for the use of a payment method other than the preset one, the discount constituted an inadmissible circumvention pursuant to Art. 312k (1) sentence 2 BGB. The preset payment method was not “common” as defined in Art. 312a (4) No. 1 BGB. From the customer’s relevant perspective, the fee was to be considered as an additional charge for the use of another common payment method. From a customer perspective, the total amount displayed was the decisive factor. 

By granting a discount for the use of a preset payment method, the customer was given the impression that the higher fee solely resulted from the selection of an individual payment method. Although the customer had the option of changing the default payment method and thereby directly seeing the price including the incurred fee, this had no influence on the customer’s impression of the defendant’s pricing. 
The limitation of the free payment method to a credit card that has not become widespread among a larger group of customers thus violated Art. 312a (4) no. 1 BGB.

The action is substantiated pursuant to Art. 2 (1) UKlaG (German law on actions for injunction) in conjunction with Art. 312a (4) no. 1 BGB. The plaintiff can demand compensation for the costs of the previous warning letter, Art. 13 (3) UWG (German law against unfair competition). Thus, the BGH confirms the appeal court’s decision (Dresden Higher Regional Court, dated February 11, 2020 – file no. 14 U 1885/19). 

Practical advice on the service fee
When providing payment methods for services on internet sales platforms, one must ensure that the customers can select at least one common payment method without incurring an additional charge. Such charge can also have the form of a discount in the amount of an otherwise applicable “service fee” which is granted for the selection of a non-common payment method. We therefore strongly advise against any attempts at such circumvention. Instead, one should always question what impression the pricing as a whole creates from the customer’s relevant point of view.