In Vodafone Kabel Deutschland GmbH v Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V., the Oberlandesgericht München (Higher Regional Court – Munich) made a request to the European Court of Justice for a preliminary ruling in relation to the interpretation of Article 62(4) of PSD2 which says:
“In any case, Member States shall ensure that the payee shall not request charges for the use of payment instruments for which interchange fees are regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 applies.”
The request was made in proceedings between Vodafone and the German Federal Union of Consumer Organisations and Associations (Federal Union) concerning the application of a standard charge in respect of the use of certain payment instruments for the execution of payment transactions arising from contracts concluded between Vodafone and consumers.
Following the transposition of PSD2 into German law on 13 January 2018, Vodafone has been drawing a distinction between its service contracts concluded before that date and those concluded on or after that date. In relation to the first category of contracts, Vodafone applies a standard charge, called a ‘Selbstzahlerpauschale’ (fixed fee in respect of payment made by the customer himself or herself), of €2.50 per payment transaction for customers who do not authorise it to make automatic direct debits, but pay the bills themselves by means of a SEPA credit transfer. On the other hand, that charge is no longer included in the price list applicable to the second category of contracts.
Vodafone’s view is that it is entitled to apply that charge to payment transactions initiated in performance of contracts concluded before 13 January 2018 and, therefore, can levy the fixed fee in respect of such transactions even after that date. Vodafone argues that the prohibition on levying additional charges, laid down in Paragraph 270a of the Bürgerliches Gesetzbuch (Civil Code), applies only to contracts of indefinite duration concluded from 13 January 2018 onwards.
The Federal Union’s view is that the prohibition on levying additional charges from 13 January 2018 onwards also applies to payment transactions initiated after that date in performance of contracts concluded before that date, since Article 62(4) of PSD2 is intended to create the same conditions across the internal market in payment services.
The question the ECJ was therefore asked to consider was whether Article 62(4) of PSD2 must be interpreted as precluding national legislation under which, in the context of contracts of indefinite duration concluded with consumers, the prohibition on requesting charges for the use of payment instruments and for payment services referred to in that provision applies only to payment transactions initiated in performance of contracts concluded after 13 January 2018, with the result that such charges remain applicable to payment transactions initiated after that date in performance of contracts of indefinite duration concluded before that date.
The ECJ concluded that Article 62(4) of PSD2 must be interpreted as precluding national legislation, thereby finding in Vodafone’s favour.