ECJ: Vodafone is not allowed to charge fees for transfers

Legal success for the Federal Association of Consumer Organizations (vzbv) before the European Court of Justice (ECJ): He complained before German courts that the cable network operator and internet provider Vodafone continued to issue a ” Self-payer flat rate “per payment without direct debit in the amount of 2.50 euros. According to the ECJ, this practice, which also applied to SEPA transfers, is incompatible with EU law.

According to the Payment Services Directive PSD2, which had to be implemented into national law by January 13, 2018, money recipients and merchants are not allowed to charge their customers any additional fees for using a certain payment instrument. According to the ECJ, this requirement includes all payments with credit and debit cards as well as bank transfers and direct debits.

The vzbv asserted that the prohibition of charging additional fees from January 13, 2018, provided for by the implementation of the German directives in Section 270a of the German Civil Code (Bürgerliches Gesetzbuch), also applies to payment transactions that “would be effected after this date in the fulfillment of previously concluded contracts”. Article 62 of PSD2 aims to create the same conditions in the internal market as of the deadline.

According to the association, the transitional provision in Article 229 Paragraph 45 of the Introductory Act to the BGB should also be interpreted in such a way that the new rule applies from January 13, 2018 to all payment transactions effected from this date, including those based on contracts concluded before this date.

The Munich Higher Regional Court asked the ECJ to interpret the dispute in the light of PSD2. It took the view that Section 270a of the German Civil Code (BGB) would also apply if the obligation on which the payment transactions were based arose before January 13, 2018. A further prerequisite must be that the processes that are due periodically – usually monthly – are only triggered after this date.

The ECJ ruled on Thursday that the prohibition of surcharges applies to payment transactions “regardless of any underlying obligations in the relationship between payer and payee” in case C-484/20. The relevant point in time for the application of this clause is the one “at which the payment transaction is effected”. So it does not matter when the underlying obligation arose.

It follows from a systematic interpretation of the relevant Article 62 of the Directive that “the prohibition on collecting fees for the use of the payment instruments and payment services mentioned in this provision applies to all payment transactions effected from 13 January 2018”.

Any application that differentiates according to whether the underlying obligations arose before or after this date would jeopardize the required harmonization at EU level, according to the Luxembourg judges. This in turn is likely to weaken the consumer protection objective pursued by the directive in the internal market for payment services.

The ECJ also rejected Vodafone’s argument, according to which the temporal scope thus granted “violates the principles of retroactive legal norms” and the protection of legitimate expectations. The judges emphasized that a new provision would be “generally applicable from the entry into force of the legal act that introduced it”. It is also directly applied “to the future effects” of older legal positions, “unless it is clear from the wording, structure or objective of the regulation that retroactive effect is to be attributed to it”.


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