Judgment;Summary — ECLI:EU:C:2021:975
Date: 2021-12-02
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-484/20 – 1 
Case C-484/20 
Request for a preliminary ruling 
Date lodged: 
1 October 2020 
Referring court: 
Oberlandesgericht München (Germany) 
Date of the decision to refer: 
1 October 2020 
Defendant and Appellant: 
Vodafone Kabel Deutschland GmbH 
Applicant and Respondent: 
Bundesverband der Verbraucherzentralen und 
Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. 
  
[…] 
ORDER 
In the proceedings 
Bundesverband der Verbraucherzentralen und Verbraucherverbände – 
Verbraucherzentrale Bundesverband e. V., […] Berlin  
– Applicant and Respondent – 
[…] 
v 
Vodafone Kabel Deutschland GmbH, […] Unterföhring  
– Defendant and Appellant – 
[…] [Or. 2] 
on 1 October 2020, the Twenty-Ninth Civil Chamber of the Oberlandesgericht 
München (Higher Regional Court of Munich, Germany) […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2020 – CASE C-484/20 
 
2  
ordered as follows: 
I. The proceedings are […] stayed. 
II. In relation to 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 (hereinafter referred to as: Directive (EU) 
2015/2366) 
the following question is referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
– Is Article 62(4) of Directive (EU) 2015/2366 to be interpreted in such 
a way that it prevents a national regulation or practice, in the form of a 
transitional provision, that only allows the prohibition of charges for 
the use of payment instruments and payment services in accordance 
with the corresponding national implementing provision in relation to 
ongoing contractual obligations with consumers, if the underlying 
contractual obligation arose 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 
after 13 January 2018? [Or. 3] 
Grounds: 
The subject of the main parties’ dispute before the referring court is whether the 
Defendant, as a cable network operator and internet service provider, is entitled to 
demand from consumers a ‘standard direct payment charge of EUR 2.50 per 
payment in accordance with its General Terms and Conditions of Business, if 
these consumers do not provide the Defendant with a direct debit mandate but 
instead pay bills themselves by SEPA transfer, in so far as the underlying 
contractual obligation was established prior to the date of transposition of 
Directive (EU) 2015/2366 in national law on 13 January 2018, but the settlement 
of (other) payment transactions did not start until after this date. 
1. Legal framework 
a. EU law 
The recitals in the preamble to Directive (EU) 2015/2366 read, in extracts, 
as follows: 
VODAFONE KABEL DEUTSCHLAND 
 
3 
(1) In recent years, significant progress has been achieved in integrating 
retail payments in the Union, in particular in the context of the Union acts on 
payments, in particular through Directive 2007/64/EC of the European 
Parliament and of the Council, Regulation (EC) No 924/2009 of the 
European Parliament and of the Council, Directive 2009/110/EC of the 
European Parliament and of the Council, and Regulation (EU) No 260/2012 
of the European Parliament and of the Council. Directive 2011/83/EU of the 
European Parliament and of the Council has further complemented the legal 
framework for payment services by setting a specific limit on the ability of 
retailers to surcharge their customers for the use of a given means of 
payment. 
(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 
[Or. 4] ensuring a high level of consumer protection in the use of those 
payment services across the Union as a whole. This should generate 
efficiencies in the payment system as a whole and lead to more choice and 
more transparency of payment services while strengthening the trust of 
consumers in a harmonised payments market. 
(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. 
Merchants located in Member States where surcharging is allowed offer 
products and services in Member States where surcharging is prohibited and 
surcharges the consumer. There are also many examples of merchants 
surcharging consumers at levels much higher than the cost borne by the 
merchant for the use of a specific payment instrument. Moreover, a strong 
rationale for revising surcharging practices is supported by the fact that 
Regulation (EU) 2015/751 establishes rules for interchange fees for card-
based payments. Interchange fees constitute the main component of 
merchant charges for cards and card-based payments. Surcharging is the 
steering practice sometimes used by merchants to compensate for the 
additional costs of card-based payments. Regulation (EU) 2015/751 imposes 
limits on the level of interchange fees. Those limits will apply before the 
prohibition set out in this Directive. 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. 
(99) It is necessary to ensure the effective enforcement of the provisions of 
national law adopted pursuant to this Directive. Appropriate procedures 
should therefore be established by means of which it will be possible to 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2020 – CASE C-484/20 
 
4  
pursue complaints against payment service providers which do not comply 
with those provisions and to ensure that, where appropriate, effective, 
proportionate and dissuasive penalties are imposed. (…) [Or. 5] 
Regulation (EU) No 2015/2366 provides for the following among other 
aspects: 
Article 2 
Scope 
1. This Directive applies to payment services provided within the Union. 
2. Titles III and IV apply to payment transactions in the currency of a 
Member State where both the payer’s payment service provider and 
the payee’s payment service provider are, or the sole payment service 
provider in the payment transaction is, located within the Union. 
Article 4 
Definitions 
For the purposes of this Directive, the following definitions apply: (…) 
(9) ‘payee’ means a natural or legal person who is the intended recipient 
of funds which have been the subject 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; 
Article 62 
Charges applicable 
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 [Or. 6] for those payment services to which Regulation 
(EU) No 260/2012 applies. 
Article 107 
Full harmonisation 
1. Without prejudice to Article 2, Article 8(3), Article 32, Article 38(2), 
Article 42(2), Article 55(6), Article 57(3), Article 58(3), Article 61(2) 
and (3), Article 62(5), Article 63(2) and (3), the second subparagraph 
of Article 74(1) and Article 86, in so far as this Directive contains 
VODAFONE KABEL DEUTSCHLAND 
 
5 
harmonised provisions, Member States shall not maintain or introduce 
provisions other than those laid down in this Directive. 
Article 115 
Transposition 
1. By 13 January 2018, Member States shall adopt and publish the 
measures necessary to comply with this Directive. They shall 
immediately inform the Commission thereof. 
2. They shall apply those measures from 13 January 2018. 
Regulation (EU) No 260/2012 provides as follows: 
Article 1 
Subject matter and scope 
1. This Regulation lays down rules for credit transfer and direct debit 
transactions denominated in euro within the Union where [Or. 7] both 
the payer’s payment service provider and the payee’s payment service 
provider are located in the Union, or where the sole payment service 
provider (PSP) involved in the payment transaction is located in the 
Union. 
b. National law 
Paragraph 270a of the Bürgerliches Gesetzbuch (German Civil Code) 
effective from 13 January 2018 pursuant to the Law of 17 July 2017 […] 
reads: 
Any agreement by which the debtor is obliged to pay a charge in order to 
use a SEPA Core Direct Debit, a SEPA B2B Direct Debit, a SEPA credit 
transfer or a payment card for payment shall be invalid. Sentence 1 shall 
apply to the use of payment cards for payment transactions with consumers 
only, if this is subject to Chapter II of 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 L 123, 19 May 2015, p. 1). 
The transitional provision of Article 229, Paragraph 45 of the 
Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to the 
German Civil Code) annexed with effect from 13 January 2018 by the Law 
of 17 July 2017 […] reads: 
(1) Contractual obligations that concern the execution of payment 
transactions and that arose on or after 13 January 2018 shall only be 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2020 – CASE C-484/20 
 
6  
governed by the German Civil Code and Article 248 in the version 
applicable from 13 January 2018 onwards. 
(2) Contractual obligations that concern the execution of payment 
transactions and that arose prior to 13 January 2018 shall be governed 
by the German Civil Code and Article 248 in the version applicable up 
to 13 January 2018, unless subparagraphs 3 and 4 contain provisions to 
the contrary. [Or. 8] 
(3) If, in the case of a contractual 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 German Civil Code and Article 248 in 
the version applicable from 13 January 2018 onwards. 
(4) From this date, Paragraph 675f(3) of the German Civil Code in the 
version applicable from 13 January 2018 onwards shall also apply to 
contractual obligations within the meaning of subparagraph 2. 
(5) Paragraph 270a of the German Civil Code shall apply to all contractual 
obligations that arose on or after 13 January 2018. 
2. Facts of the main proceedings 
a. The Applicant, a consumer protection organisation with a right of action 
under German law, filed a claim against the Defendant, a cable network 
operator and internet service provider, following a prior warning to cease 
using a provision in its General Terms and Conditions within the scope of 
commercial activities, except in respect of commercial operators, and 
invoking this provision within the scope of service contracts for 
telecommunications and cable network services; the provision in question 
reads: ‘Standard direct payment charge: standard charge of € 2.50 per 
payment not made by direct debit.’ 
Since the transposition of Directive (EU) 2015/2366 into German law on 
13 January 2018, the Defendant has been making a distinction in its 
contracts between existing contracts and new contracts. In a description of 
prices and services in existing contracts that were concluded prior to 
13 January 2018, the Defendant uses the aforementioned clause, which does 
not exclude SEPA credit transfers, for example. This clause is no longer 
included in the corresponding price list that applies for new contracts 
concluded from 13 January 2018 onwards. 
The Defendant considers itself entitled to use the clause for existing 
contracts, since it believes that the prohibition on surcharges in accordance 
with Paragraph 270a of the German Civil Code only applies to ongoing 
contractual obligations that arose on or after 13 January 2018. It therefore 
VODAFONE KABEL DEUTSCHLAND 
 
7 
considers itself entitled to charge standard direct payment charges even after 
this date for [Or. 9] existing contracts that were concluded prior to that date, 
because it believes the distinct transitional provision of Article 229, 
Paragraph 45, subparagraph 5 of the Introductory Law to the German Civil 
Code focuses on contractual obligations arising on or after 13 January 2018, 
so retroactive application of Paragraph 270a of the German Civil Code 
would not be considered, even if payments were made from 13 January 2018 
onwards. 
The Applicant, on the other hand, holds the view that the prohibition on 
charging surcharges from 13 January 2018 also applies to existing contracts 
concluded prior to 13 January 2018. It claims that, since the intention of 
Article 62(4) of Directive (EU) 2015/2366 was to create the same conditions 
across the internal market from the reference date, the transposing provision 
in Paragraph 270a of the German Civil Code must apply irrespective of the 
duration of a contract and therefore also to ongoing contractual obligations 
that arose prior to 13 January 2018. It also claims that the transitional 
provision in Article 229, Paragraph 45, subparagraph 5 of the Introductory 
Law to the German Civil Code must be interpreted according to the 
underlying legal rationale in Article 229, Paragraph 45, subparagraph 3 of 
the Introductory Law, in such a way that contracts concluded prior to 
13 January 2018 are nevertheless subject to the new law that applies from 
the reference date, even if payment transactions began on or after 13 January 
2018. 
b. The referring court tends towards the view that the national regulation in 
Paragraph 270a of the German Civil Code transposing Article 62(4) of 
Directive (EU) 2015/2366 is also applicable if the ongoing contractual 
obligation underlying the payments was concluded prior to 13 January 2018, 
but the settlement of (other) payment transactions did not start until after this 
reference date, because, for example, fees for cable use and internet 
provision are chargeable at periodic, generally monthly, intervals, as in the 
present case. 
It is relevant in this case that, according to the view of the referring court, 
Article 62(4) of Directive (EU) 2015/2366 only focuses on the use of 
payment instruments and payment services, for which it orders a prohibition 
of surcharges charged by payees in the course of full harmonisation for the 
period following the deadline for transposition on 13 January 2018. In 
contrast, the Directive does not make reference to the formation of the 
contractual obligation that forms the basis for the payments. [Or. 10] 
The referring court therefore tends towards also applying the surcharge 
prohibition to existing contracts concluded prior to 13 January 2018, 
because, in accordance with recital (6) to the Directive, the intention is to 
ensure the consistent application of the legislative framework for payments 
across the European Union, to guarantee equivalent operating conditions for 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2020 – CASE C-484/20 
 
8  
both existing and new market players, and to guarantee a high level of 
consumer protection in the use of those payment services across the Union 
as a whole. In accordance with recital (66) to that directive, the different 
national practices concerning charging, which have led to extreme 
heterogeneity of the European Union’s payments market and have become a 
source of confusion for customers, are to be harmonised by prohibiting 
payees from demanding charges for the use of certain payment instruments. 
This EU-wide harmonisation would be called into question if different 
surcharges for ongoing contractual obligations were also permissible in 
Member States in the future for an indefinite period of time, because it 
would supposedly depend on the time at which the contractual obligation 
was created under national law and not on the expiry of the transposition 
deadline in the Directive, that is, 13 January 2018. 
The referring court currently considers the comprehensive application of the 
prohibition of surcharges on payments after 13 January 2018 as being called 
into question by the wording of the transitional provision in Article 229, 
Paragraph 45, subparagraph 5 of the Introductory Law, which only focuses 
on the creation of the contractual obligation […]. [Viewpoints in the relevant 
literature] [Or. 11] 
By the […] question referred, the referring court asks the Court of Justice for 
its interpretation of Article 62(4) of Directive (EU) 2015/2366. This is 
because the referring court assumes in accordance with the meaning of the 
standard, that this standard must be afforded application free of constraints 
of time from 13 January 2018, so as to ensure a consistent regulation on 
charges for the EU-wide payments market from this date, irrespective of the 
question of when ongoing contractual obligations were created: 
[…]