Vodafone Kabel Deutschland

JUDGMENT OF THE COURT (Ninth Chamber)

2 December 2021*

(Reference for a preliminary ruling – Consumer protection – Directive (EU) 2015/2366 –

Payment services – Article 62(4) – Charges applicable – Article 107(1) –

Full harmonisation – Article 115(1) and (2) – Transposition and application –

Subscriptions for cable television and internet access – Contracts of indefinite duration

concluded before the date for transposition of that directive – Charges applied to payment

transactions without direct debit authorisation that are initiated after that date)

In Case C-484/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht München

(Higher Regional Court, Munich, Germany), made by decision of 1 October 2020, received at the

Court on the same day, in the proceedings

Vodafone Kabel Deutschland GmbH

Bundesverband der Verbraucherzentralen und Verbraucherverbände –

Verbraucherzentrale Bundesverband e.V.,

THE COURT (Ninth Chamber),

composed of K. Jürimäe, President of the Third Chamber, acting as President of the Ninth

Chamber, S. Rodin and N. Piçarra (Rapporteur), Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Vodafone Kabel Deutschland GmbH, by L. Stelten, Rechtsanwalt,

– Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale

Bundesverband e.V., by C. Hillebrecht, Rechtsanwältin,

Reports of Cases

* Language of the case: German.

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– the German Government, by J. Möller, M. Hellmann and U. Bartl, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and F. Meloncelli, avvocato dello Stato,

– the European Commission, by H. Tserepa-Lacombe and T. Scharf, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 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).

2 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

European Union law

3 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.

…

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(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.’

4 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;

…’

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5 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.’

6 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.’

7 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

8 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].’

9 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.

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(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

10 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.

11 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.

12 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.

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13 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.

14 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.

15 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.

16 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.

17 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

18 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.

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19 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).

20 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.

21 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.

22 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.

23 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.

24 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.

25 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.

26 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).

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27 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.

28 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.

29 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.

30 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).

31 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.

32 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).

33 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

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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

34 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]

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