Vodafone Kabel Deutschland (Consumer protection - Subscriptions for cable television and internet access - Judgment) [2021] EUECJ C-484/20 (02 December 2021)

Judgment This request for a preliminary ruling concerns the interpretation of Article 62(4) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35, and corrigendum OJ 2018 L 102, p. 97). The request has been made in proceedings between Vodafone Kabel Deutschland GmbH (‘Vodafone’) and Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. (Federal Union of Consumer Organisations and Associations, Germany) (‘the 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. Legal context EU law Recitals 6, 53 and 66 of Directive 2015/2366 state: ‘(6) New rules should be established to close the regulatory gaps while at the same time providing more legal clarity and ensuring consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed, to existing and new players on the market, enabling new means of payment to reach a broader market, and ensuring a high level of consumer protection in the use of those payment services across the Union as a whole. … … (53) As consumers and undertakings are not in the same position, they do not need the same level of protection. While it is important to guarantee consumer rights by provisions from which it is not possible to derogate by contract, it is reasonable to let undertakings and organisations agree otherwise when they are not dealing with consumers. … In any case, certain core provisions of this Directive should always apply, irrespective of the status of the user. … (66) Different national practices concerning charging for the use of a given payment instrument (“surcharging”) have led to extreme heterogeneity of the Union’s payments market and have become a source of confusion for consumers, in particular in the e-commerce and cross-border context. … Moreover, a strong rationale for revising surcharging practices is supported by the fact that Regulation (EU) 2015/751 [of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ 2015 L 123, p. 1)] establishes rules for interchange fees for card-based payments. … Consequently, Member States should consider preventing payees from requesting charges for the use of payment instruments for which the interchange fees are regulated in Chapter II of Regulation (EU) 2015/751.’ Article 4 of Directive 2015/2366, headed ‘Definitions’, is worded as follows: ‘For the purposes of this Directive, the following definitions apply: … (5) “payment transaction” means an act, initiated by the payer or on his behalf or by the payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee; … (8) “payer” means a natural or legal person who holds a payment account and allows a payment order from that payment account, or, where there is no payment account, a natural or legal person who gives a payment order; (9) “payee” means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction; (10) “payment service user” means a natural or legal person making use of a payment service in the capacity of payer, payee, or both; … (13) “payment order” means an instruction by a payer or payee to its payment service provider requesting the execution of a payment transaction; (14) “payment instrument” means a personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order; … (20) “consumer” means a natural person who, in payment service contracts covered by this Directive, is acting for purposes other than his or her trade, business or profession; …’ Article 62 of Directive 2015/2366, headed ‘Charges applicable’, provides in paragraphs 3 to 5: ‘3. The payment service provider shall not prevent the payee from requesting from the payer a charge, offering him a reduction or otherwise steering him towards the use of a given payment instrument. Any charges applied shall not exceed the direct costs borne by the payee for the use of the specific payment instrument. 4. 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 [of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (OJ 2012 L 94, p. 22)] applies. 5. Member States may prohibit or limit the right of the payee to request charges taking into account the need to encourage competition and promote the use of efficient payment instruments.’ Article 107 of Directive 2015/2366, headed ‘Full harmonisation’, provides in paragraph 1: ‘Without prejudice to … Article 62(5) …, in so far as this Directive contains harmonised provisions, Member States shall not maintain or introduce provisions other than those laid down in this Directive.’ Article 115 of Directive 2015/2366, headed ‘Transposition’, states in paragraphs 1 and 2: ‘1. By 13 January 2018, Member States shall adopt and publish the measures necessary to comply with this Directive. … 2. They shall apply those measures from 13 January 2018. …’ German law Paragraph 270a of the Bürgerliches Gesetzbuch (Civil Code), in the version applicable from 13 January 2018 (‘the BGB’), provides: ‘Any agreement by which the debtor is obliged to pay a charge in order to use a SEPA [(single euro payments area)] core direct debit, a SEPA business-to-business direct debit, a SEPA credit transfer or a payment card shall be invalid. The first sentence shall apply to the use of payment cards only in the case of payment transactions with consumers, in so far as this is subject to Chapter II of Regulation [2015/751].’ Article 229(45) of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil Code) (‘the EGBGB’) provides: ‘(1) Obligations that concern the execution of payment transactions and have arisen on or after 13 January 2018 shall be governed only by the BGB and Article 248 [of this Law] in the version applicable from 13 January 2018 onwards. (2) Obligations that concern the execution of payment transactions and have arisen prior to 13 January 2018 shall be governed by the BGB and Article 248 [of this Law] in the version applicable up to 13 January 2018, unless subparagraphs 3 and 4 contain provisions to the contrary. (3) If, in the case of an obligation within the meaning of subparagraph 2, the settlement of a payment transaction did not commence until 13 January 2018 or later, this payment transaction shall be governed only by the BGB and Article 248 [of this Law] in the version applicable from 13 January 2018 onwards. … (5) Paragraph 270a of the BGB shall apply to all obligations that have arisen on or after 13 January 2018.’ The dispute in the main proceedings and the question referred for a preliminary ruling Vodafone is a cable network operator and internet access provider that carries out its business in Germany. Following the transposition of Directive 2015/2366 into German law, Vodafone has, since 13 January 2018, been drawing a distinction between telecommunications service contracts and cable service contracts concluded before that date and those concluded on or after that date. It applies to the first category of contracts, pursuant to a general contractual clause, a standard charge, called a ‘ Selbstzahlerpauschale ’ (fixed fee in respect of payment made by the customer himself or herself), of EUR 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 clause is no longer included in the price list applicable to the second category of contracts. Vodafone takes the view that it is entitled to apply that clause to payment transactions initiated in performance of contracts concluded before 13 January 2018 and, therefore, to levy the fixed fee in respect of such transactions even after that date. In its submission, the prohibition on levying additional charges, laid down in Paragraph 270a of the BGB, applies only to contracts of indefinite duration concluded from 13 January 2018 onwards. Since Article 229(45)(5) of the EGBGB refers to the arising of the obligation on or after 13 January 2018, retroactive application of Paragraph 270a of the BGB to contracts concluded before that date is not possible, even if the payment transactions founded on those contracts are initiated only on or after that date. The Federal Union contends that the prohibition, laid down in Paragraph 270a of the BGB, 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 Directive 2015/2366 is intended to create the same conditions across the internal market in payment services on 13 January 2018. Furthermore, the transitional provision in Article 229(45) of the EGBGB must, by virtue of point 3 of that paragraph, be interpreted as meaning that, from 13 January 2018 onwards, the new rules apply to all payment transactions initiated on or after that date, including those which are founded on contracts concluded before that date. In those circumstances, the Federal Union brought legal proceedings seeking an order that Vodafone cease to apply to all payment transactions initiated on or after 13 January 2018 the fixed fee in respect of payment made by the customer himself or herself, and it was successful in that action. The Oberlandesgericht München (Higher Regional Court, Munich, Germany), before which Vodafone lodged an appeal, is inclined to the view that Paragraph 270a of the BGB, which transposes Article 62(4) of Directive 2015/2366 into German law, also applies where the contractual obligation underlying the payment transactions has arisen before 13 January 2018 but those transactions, chargeable at periodic, generally monthly, intervals, are not initiated until after that date. According to that court, from 13 January 2018 onwards, and irrespective of the date on which contracts of indefinite duration have been concluded, a uniform charging regime on the payments market is established in the European Union, with the result that the prohibition, laid down in that provision, on levying additional charges also applies to contracts of indefinite duration concluded before 13 January 2018. That court also observes that Article 229(45)(5) of the EGBGB, which refers only to the arising of the contractual obligation, although that is not mentioned by Directive 2015/2366, calls into question the full application of the prohibition on levying additional charges for payment transactions initiated on or after 13 January 2018, where the contractual obligation underlying those transactions has arisen before that date. In those circumstances, the Oberlandesgericht München (Higher Regional Court, Munich) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 62(4) of [Directive 2015/2366] to be interpreted in such a way that it precludes a national regulation or practice, in the form of a transitional rule, that allows the prohibition of charges for the use of payment instruments and payment services, laid down by the corresponding national implementing provision, to apply in relation to ongoing contractual obligations with consumers only if the underlying contractual obligation arose on or after 13 January 2018, but not if the underlying contractual obligation arose prior to 13 January 2018, where settlement of (other) payment transactions does not start until on or after 13 January 2018?’ Consideration of the question referred By its question, the referring court asks, in essence, whether Article 62(4) of Directive 2015/2366 must be interpreted as precluding national legislation or a national practice 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. In accordance with settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part (judgments of 13 October 2016, Mikołajczyk , C‑294/15, EU:C:2016:772 , paragraph 26, and of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie , C‑16/19, EU:C:2021:64 , paragraph 26). As regards the wording of Article 62(4) of Directive 2015/2366, that provision lays down that Member States are to ensure that the payee, within the meaning of Article 4(9) of the directive, shall not request charges for the use of payment instruments for which interchange fees are regulated under Chapter II of Regulation 2015/751 and for those payment services to which Regulation No 260/2012 applies. Its wording furnishes no clarification relating to the temporal application of that prohibition. In those circumstances, regard must be had to the context of the prohibition on requesting charges for the use of the payment instruments and for the payment services referred to in Article 62(4) of Directive 2015/2366, and to the objectives pursued by that directive. As regards the context of Article 62(4) of Directive 2015/2366, it should be pointed out, first, that, under Article 115(1) and the first subparagraph of Article 115(2) of the directive, whilst Member States must adopt and publish the measures necessary to comply with the directive by 13 January 2018, those measures become applicable only from that date. Second, since Article 62(4) of Directive 2015/2366 contains harmonised provisions, the Member States, pursuant to Article 107(1) of the directive, are not to maintain or introduce provisions other than them from the date laid down in the first subparagraph of Article 115(2) of the directive. Third, since the prohibition on requesting charges for the use of the payment instruments and for the payment services referred to in Article 62(4) of Directive 2015/2366 applies to payment transactions, within the meaning of Article 4(5) of the directive, ‘irrespective of any underlying obligations between the payer and the payee’, the relevant date, for the purpose of applying that prohibition, is the date on which the payment transaction is initiated and not the date on which the obligation underlying that transaction arose. It thus follows from a systematic interpretation of Article 62(4) of Directive 2015/2366 that the prohibition on requesting charges for the use of the payment instruments and for the payment services referred to in that provision applies to all payment transactions initiated on or after 13 January 2018. As regards the objectives pursued by Directive 2015/2366, it must be pointed out that it aims to promote the further integration of an internal market in payment services as well as to protect users of those services and, in particular, to offer a high level of protection to those who are consumers, as is apparent, inter alia, from recitals 6 and 53 of the directive (see, to that effect, judgment of 11 November 2020, DenizBank , C‑287/19, EU:C:2020:897 , paragraph 102 and the case-law cited); the protection of consumers within EU policies is, moreover, enshrined in Article 169 TFEU and Article 38 of the Charter of Fundamental Rights of the European Union (see, by analogy, judgment of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main , C‑568/15, EU:C:2017:154 , paragraph 28). Furthermore, as is apparent from recital 66 of Directive 2015/2366, the EU legislature sought to overcome, by means of the prohibition laid down in Article 62(4) of the directive, the fragmentation of national practices concerning charging for the use of certain payment instruments, fragmentation which gave rise to extreme heterogeneity of the European Union’s payments market and was a source of confusion for consumers, in particular in the e-commerce or cross-border context. Any application of that provision that differs according to whether the obligations underlying payment transactions initiated from 13 January 2018 onwards arose before or after that date would undermine the harmonisation at EU level imposed by Article 62(4) of Directive 2015/2366, read in conjunction with Article 107(1) thereof, thereby weakening the objective, pursued by that directive, of protecting consumers in the internal market in payment services. In that context, it is, moreover, necessary to reject the argument, put forward by Vodafone in its written observations, that the principles of non-retroactivity of the law and of the protection of legitimate expectations would be infringed on account of the temporal scope thus accorded to Article 62(4) of Directive 2015/2366. A new legal rule applies, in principle, from the entry into force of the act introducing it, and, while it does not apply to legal situations that arose and became definitive before that act entered into force, it does apply immediately to the future effects of a situation which arose under the old law, as well as to new legal situations, unless it clearly follows from the terms, general scheme or objective of that rule that it must be given retroactive effect. That is so in particular if that rule is accompanied by special provisions which specifically lay down the conditions for its temporal application, giving it such effect (see, to that effect, judgment of 14 May 2020, Azienda Municipale Ambiente , C‑15/19, EU:C:2020:371 , paragraphs 56 and 57 and the case-law cited). Here, since, as is clear from paragraph 25 of the present judgment, Article 62(4) of Directive 2015/2366 does not apply to payment transactions executed before 13 January 2018, that provision does not concern legal situations that became definitive before that date and therefore does not involve retroactive effect. Furthermore, so far as concerns payment transactions initiated on or after 13 January 2018 in performance of contracts of indefinite duration concluded before that date, Article 62(4) of Directive 2015/2366 constitutes only an instance of the application of a new rule of law to the future effects of a situation which arose under the old rule. Finally, in so far as the referring court considers that Article 229(45)(5) of the EGBGB calls into question the full application of the prohibition on levying additional charges for payment transactions initiated on or after 13 January 2018 onwards where those transactions stem from a contractual obligation that has arisen before that date, it falls to that court, in accordance with settled case-law, to establish whether that provision can be interpreted in conformity with Article 62(4) of Directive 2015/2366 as interpreted in paragraph 25 of the present judgment, in order to ensure that, when determining the dispute before it, EU law is fully effective (see, to that effect, judgment of 15 October 2020, Association française des usagers de banques , C‑778/18, EU:C:2020:831 , paragraph 59 and the case-law cited). In the light of the foregoing considerations, the answer to the question referred is that Article 62(4) of Directive 2015/2366 must be interpreted as precluding national legislation or a national practice 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 Article 62(4) 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. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Ninth Chamber) hereby rules: Article 62(4) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, must be interpreted as precluding national legislation or a national practice 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 Article 62(4) 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. [Signatures] * Language of the case: German. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII