PayPal Surcharging: FlixMobility appeals decision of Munich Regional Court

By Dr Michael Jünemann, Johannes Wirtz

01-2019

FlixMobility responds with an appeal to a surprising decision of the Regional Court of Munich I (LG München) from December 2018 in favor of the German association to combat unfair competition (Wettbewerbszentrale) which prohibits surcharging for the use of PayPal. A written statement to the court is expected soon bringing the dispute to the Higher Regional Court of Munich (OLG München).  

Surcharging adds a fee to a purchase price when using specified means of payment. For “common” means of payment as SEPA direct debit, SEPA credit transfer and most payment cards, section 270a BGB as part of the implementation of the second Payment Services Directive (PSD2) prohibits surcharging in Germany. In the case of PayPal (as well as other Payment Service Providers such as Sofortüberweisung) the norm’s application is disputed and its boundaries were tested by the decision of LG München.

One of FlixMobility’s options in the appeal may be a new and more detailed assertion of the technical details and specific characteristics of payment schemes. Payments through PayPal do not directly access the payer’s bank account, but operates through e-money that is stored in a staged wallet. The acquisition of said e-money through the above mentioned means of payment still negates the application of section 270a BGB. In the case of PayPal, customers may store account or payment card details, but are not required to do so. Only so-called pass-through wallets may be covered by section 270a BGB.

The decision recommendation of the Finance Committee of the German Bundestag explicitly excludes PayPal from section 270a BGB.

FlixMobility adapted its surcharging practices even before the decision. Also, the decision is only applicable to this precise case. The undoubted signaling effect of the verdict, however, makes the appeal scientifically relevant and practically desirable.