responsible for the civil rights journey Senate today decided on the action of the Federation of Consumer Organizations to the use of terms of payment in terms of an air transport company. The defendant
Ryanair Ltd.. used against consumers following terms and conditions, which stated among other things:
"Because of the increased security and administrative costs will be accepted by Ryanair no cash payments for tickets, the payment of fees and charges for excess luggage and sports equipment ...."
In the fee schedule provided, inter alia, the following fees:
"credit card fee: Per passenger, and single ticket: 4,00 €
payment card fee: Per passenger, and single ticket: 1,50 €"
The applicant feels that these provisions an unfair disadvantage to passengers. The Berlin court, the clause on Exclusion of cash to be invalid, kept the charging scheme to be effective. The Commissioner, on appeal, Court of Appeal has held vice versa.
The plaintiff had argued that the Berlin court dismissed the action wrong, it was the offending clauses (that govern the "exclusion of cash") qualifies an error of law as price agreements, which are, however, particularly because of the provision of § 310 III Number . 3 BGB and because of the typical online distribution channel independently to assess the possibility of a cash payment. Alleged card charges stood, facing opposite to the opinion of the District Court, no special services by the defendant; rather, let the defendant pay their own inherent contractual obligations.
The defendant defended the first-instance verdict of the Berlin court, as far as it dismissed the action. With its cross-appeal to contests this instead of giving part of First Instance, the Berlin court had incorrectly assumed that the defendant do not advertise exclusive distance business, and the complaint by the district court "Exclusion of cash" does not rule out a means of payment, but only one payment. § 362 BGB provides that a debt could be met in various ways.
According to the Court of Appeal is contrary to the opinion of the LG Berlin not, according to a content review. § § 309, 308, 307 BGB, withdrawn, price main agreements. According to the jurisprudence of the Supreme Court limited § 307 III 1 BGB, the content review on terms which differ from or complement legislation. As the parties may determine after the Civil law applicable principle of private autonomy performance and contribution in principle free to subject terms and conditions clauses, the nature and extent of the principal contractual obligation and the price to be paid for directly regulate, not the content control. Control capabilities are against but price-side agreements, ie agreements that do have an indirect impact on price and performance, but in their place, if an effective contractual arrangement is missing, enter dispositive rule of law. Not to control the competitive price-side agreements in addition to the provisions on the price of the contractual consideration include those clauses that govern the consideration for a special benefit is offered separately.
provide contrast, but charging schemes, which yielded not one to transactions based on the customer's special performance in approach, but pass on applications for compliance with the law justified their duty clause user to the customer, represent a departure from law and fall within the scope of § § 309, 308, 307 I, II BGB.
"It depends on whether the clause underlying activities of the user at the client's interests are perceived and related to these activities for the customer any advantages."
In the present case, the contested clauses of the defendant's fee obligations for the payment with credit or debit cards. It is questionable whether those rules govern only pay for the special benefit is offered separately and therefore do not belong to the non-competitive price-control side agreements. Evidenced by the triggers for online booking at the website of the defendant appearing message box in an online plane ticket reservation each selected Payment, particularly of the electronic debit, an additional fee of. The Berlin court was of the opinion that acceptance of payments by credit cards and debit cards at any rate is the fee for the defendant also offered special when cash is accepted as payment would be, because the defendant was in the case of the given option of cash is not required to Credit cards and debit cards to accept additional payment methods. According to the Court of Appeal, however, is not contrary to the opinion of the Berlin court, a real consideration of the defendant for such fees apparent. The advantage cited by the defendant, according it is convenient for the customer to purchase a ticket at a distance, as appropriate to be covered long distances to an airport for a ticket where to buy locally, does not convince the Court of Appeal. With online sales take the form of the defendant's own interests equally true. That customers book their flight tickets online and go not to an airport, where he bought a ticket for a few weeks or months later, the Flight, was almost a typical feature of this form of marketing. That a customer is informed only on the Internet via the online form then, but going to the airport and then buys a ticket would probably be the absolute exception.
"Customers must be available to pay for any additional fee or payment received for the purchase of an Electron card other obligations. They have, apart from the contract atypical purchase tickets at the airport, no way to their contractual obligation to pay the fare comply charge. "
Incurred costs can not be passed on to third parties by law imposed obligations in terms of declared individual services to contractors be. Any charging scheme in terms that are not provided on a commercial basis in law for the individual client main or secondary activity is based, but to shift costs to fulfill their duty trying represents a deviation of legislation and therefore contrary to § 307 II 1 BGB. In addition, the incompatibility of a clause indicated with essential basic principles of the statutory scheme is contrary to good faith and unreasonable disadvantage of the contractor, acc. § 242 BGB. The defendant passed here as a User shall the terms of the costs of its own statutory obligation to accept the return from one side to the customer. Finally, it should be noted that the defendant cash payments not accepted due to rationalization and cashless payment transactions even more so in their own Interest.
The disputed clauses hold a content review was not, because it provided essential basic principles of the law are incompatible, acc. § 307 II 1 BGB. The parties to the defendant to be penalized by the clauses in an inappropriate manner, acc. § 307 I 1 BGB.
question now is whether the cash payment exclusion clause constitutes an unfair disadvantage to the partners of the defendant. The Court of Federal Supreme Court, it is generally permissible to take into account in the design of terms and rationalization considerations and to simplify the contracts and to unify. However, the user may not be one-sided rationalization interest and, and without regard for the interests of his party.
In the present case concerns the "exclusion of cash" by the disputed clause, "the payment of tickets, payment of fees and charges for excess luggage and sports equipment. These services are almost exclusively in the distance. The defendant has already first instance be noted that in the distance would be almost impossible to provide in each case, appropriate facilities and equipment to allow the customer a cash payment. if it were also to bulk business, which is usually in the contract negotiation phase no direct contact between the defendant with the passengers would bring with it. Since the benefits are of cashless payment transactions for the defendant is therefore obvious to assume that that is appropriate from the defendant used cash payment exclusion clause to achieve a significant and economically meaningful rationalization success. These benefits on the part of the defendant are on the side of their customers, compared to in the opinion of the Court of Appeal, any prejudice that would be so remarkable that they would be inadequate for the purposes of § 307 I BGB be assessed.
by the plaintiff at the hearing listed disadvantages, such as a contracting party of the first defendant notice at the airport, his luggage was too heavy and cause an excess baggage fee, or that one party notice on release that did not work for the online booking his card, was not convinced by the Court of Appeal. This should only be exceptions. In addition, to make sure that the non-cash payments now widely distributed and is common, especially if it is not a store.
The Federal Court now has the Judgement of the Court of Appeal confirmed and the revisions of both parties. The
associated with the exclusion of cash disadvantage of passengers is, in the opinion of the Supreme Court, not given to the legitimate interest of the defendant in the most rational operating procedures to be regarded as inappropriate. Here is crucial that the defendant their services almost exclusively at a distance, providing a cash payment and connected to both parties at considerable expense would be.
Conclusion: The challenged charging scheme is incompatible with the basic principles of the statutory scheme, acc. § 307 II 1 BGB. It penalizes also affected customers in an inappropriate manner, acc. § 307 I 1 BGB. One of the essential basic principles of optional law, any law that is what their legal obligations has to attend to, without being able to require users to pay a separate fee. By accepting a payment to the contractor is only his duty to accept a conforming tender of the customer. However, it must give consumers the opportunity to pay the payment on a popular and reasonably accessible way, without the need to be paid to the payee an additional fee.
Supreme Court ruling of 20 May 2010 - Xa ZR 68/09 Bundesgerichtshof
- Communication from the press office 107/2010
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