One year of PSD2 – current developments

19.02.2019

The Transposition Act for the Second EU Directive on Payment Services (PSD2) has been in force since January 13, 2018. In particular, the new legal provision of Section 270a Civil Code is important, as it prohibits the charging of fees for the use of SEPA payments or payment cards such as VISA and Mastercard. At the end of 2018, a first key ruling was issued in Germany, which also denied the admissibility of charging payment fees for the use of PayPal and SOFORT payment.

A. Summary of the case

The German “Wettbewerbszentrale” (Center for Protection against Unfair Competition) filed a complaint against tour bus company FlixMobility GmbH, which operates the “Flixbus” bus service, because the company had requested fees for the payment of online bookings via PayPal and SOFORT bank payment. In its December 13, 2018 ruling, Munich Regional Court (Case 17 HK O 7439/18) prohibited Flixbus from levying fees for payments via PayPal and SOFORT payment. The court held that both payment methods were subject to the new statutory provisions of Section 270a Civil Code. PayPal payments and SOFORT payments would usually be based on SEPA transfers, direct debits, or credit card payments, so that they would also fall under the ban. In the event of violating the ruling, Flixbus is facing the imposition of a fine of up to EUR 250,000. The ruling is not yet final, and Flixbus has filed an appeal in the meantime.

B. Background

When the new law entered into force, the “Wettbewerbszentrale” had set up a special contact point for complaints about payment charges. The Center had always taken the view that not only PayPal payments, but also SOFORT payments and Amazon payments were covered by the PSD2 ban on payment fees. According to the Center, the lawsuit against Flixbus was a landmark case to obtain a first court decision on payment fees for the use of PayPal and SOFORT bank payment. Due to indications in the deliberations of the law, the treatment of PayPal, in particular, was controversial under the new law.

C. Effects on online platforms

Although the ruling is not yet final and other courts may hold different views, it nevertheless sends an important signal and provides initial legal orientation for the market. Flixbus does no longer charge any fees for PayPal payments in the meantime. This practice is also recommended to other online traders at the moment. In any event, the “Wettbewerbszentrale” considers its legal view reinforced by the first instance ruling and has already announced that it will next examine whether different product prices or discounts may be granted depending on the method of payment, or whether such an approach is already covered by the ban on payment fees.

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