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Fixed charge in GTC -Effective?-

Flat-rate fees in GTC

-Effective?-

Some readers may have already had experience with flat-rate charges. Not paying an invoice on time, not having enough money in your current account or driving too fast in a hire car. Many a company resorts to flat-rate fees in order to be "remunerated" for the processing work involved.

However, many of these flat rates in general terms and conditions or price lists are ineffective.

Those affected very often accept the processing fees demanded of them and pay, even though there is often no entitlement to this under substantive law. Some of those affected believe that they themselves are "to blame" for the "lousiness" anyway. Others assume that there is a legal obligation to pay, as this is after all stated in the general terms and conditions. Still others have doubts, but shy away from the "effort" and pay.

The following article is intended to provide an overview of the common flat-rate fees that appear in general terms and conditions. Furthermore, it is intended to show under which conditions a flat fee is effective at all.

In detail:

I. What are flat-rate fees?

A "flat-rate fee" is nothing other than a predetermined amount of money that is charged for certain actions by a contractual partner. A classic example of this is the so-called "flat-rate reminder fee". If a debtor fails to fulfil a payment obligation arising from a contractual relationship, either intentionally or due to negligence, the creditor usually sends a reminder. The other contractual partner (debtor) is then required to pay a lump sum of money for this reminder, which is determined in advance.

Flat fees in connection with returned direct debits are also very common. If the debtor of a claim has issued the creditor with a direct debit mandate to collect the amount owed from the current account, it can happen that the debit fails because there is not enough money in the current account. In this case, companies often ask for a certain amount of money to be paid in order to make another direct debit attempt.

In connection with car hire contracts, "processing fees" are also widespread. The commercial car rental company receives a predetermined amount of money in the event that the renter commits a traffic offence, as a result of which the renter's data must be handed over to the regulatory authorities. It is not uncommon for the processing fee to be just as high or sometimes even higher than the fine imposed by the authorities.

II. Effectiveness of a flat fee

1. normative starting point

Section 309 No. 5 BGB plays a decisive role in assessing the validity of a flat-rate fee.

There it says:

Section 309 Prohibition of clauses without value options

Even insofar as a deviation from the statutory provisions is permissible, it is ineffective in general terms and conditions

5. (Lump-sum compensation claims)

The agreement of a lump-sum claim of the user for damages or compensation for a reduction in value if

a)
the lump sum exceeds the damage to be expected in the regulated cases according to the usual course of events or the usually occurring reduction in value or
b)
the other party to the contract is not expressly permitted to prove that no damage or reduction in value has occurred at all or that it is significantly lower than the lump sum;

If one of the alternatives listed in Section 309 No. 5 BGB applies, the corresponding GTC clause is invalid as a whole. A reduction to preserve the validity of the clause in such a way that only a reasonable fee would have to be paid, for example, does not take place (Section 306 BGB).

2. applicability of Section 309 No. 5 BGB

Section 309 of the German Civil Code (BGB) is only directly applicable in the context of a judicial review of general terms and conditions if it concerns a clause used by an entrepreneur (Section 14 BGB) in relation to a consumer (Section 13 BGB).

In commercial legal transactions, i.e. in contracts between entrepreneurs, the standard applies indirectly. As part of the content review in accordance with Section 307 BGB, the assessment resulting from Section 309 No. 5 BGB is taken into account. It follows from this that, even in commercial legal transactions, an entrepreneur must only accept flat-rate fees that are based on the average damage or average reduction in value.

3. requirements of Section 309 No. 5 lit. a) BGB

A flat-rate fee is ineffective if, among other things, it exceeds the damage to be expected in the normal course of events or the usual reduction in value.

The casuistry on this is numerous.

Using the example of flat-rate reminder fees, the following flat-rate amounts have been declared invalid by the courts in the past:

  • EUR/Dm 30,00;
  • EUR 10,00;
  • EUR 9,95;
  • EUR 9,00;
  • DM 7,00;
  • EUR 6,50;
  • EUR 5,95;
  • EUR 5,00;
  • EUR 3,00;
  • EUR 2,80;
  • EUR 2,50.

The casuistry on flat-rate fees in relation to return debit notes shows a similar picture. The following amounts have been declared invalid by the courts in this context:

  • DM/EUR 50,00;
  • EUR 20,95;
  • EUR 19,95;
  • EUR 15,00;
  • EUR 13,00;
  • EUR, 12,00;
  • EUR, 10,00;
  • EUR 9,60;
  • EUR 9,00;
  • EUR 8,90;
  • EUR 8,50;
  • EUR 7,45;
  • EUR 7,30;
  • EUR 7,00;
  • EUR 6,95;
  • EUR 6,00;
  • EUR 5,00;
  • EUR 4,59;
  • EUR 4,50.

The case law overview clearly shows that the courts apply an extremely strict standard when it comes to measuring flat-rate fees against substantive law.

4. requirements of Section 309 No. 5 lit. b) BGB

A flat-rate fee is also invalid according to Section 309 No. 5 lit. b) BGB if it does not expressly allow the other party to the contract to prove that no damage or reduction in value has occurred at all or that it is significantly lower than the flat rate.

The authorisation pursuant to Section 309 No. 5 lit. b) BGB must be made expressly and in direct connection with the corresponding clause. A reference in a footnote or in another clause is inadmissible and leads to the invalidity of the entire clause.

If the clause refers to a separate price list or similar document with regard to the amount of the respective flat rate, it is necessary that the authorisation of counter-evidence is also included there.

III. Actual legal practice

Contrary to the strict handling by the courts, flat-rate fees are included in an extremely large number of general terms and conditions. This naturally leads to the question of why this is the case. The answer is simple.

Many entrepreneurs include such fee clauses in their general terms and conditions, despite being aware of their ineffectiveness, in the hope that the other contracting party will not object.

A simple cost-benefit calculation from the company's point of view.

For a variety of reasons (see above), most affected parties do not defend themselves against ineffective flat-rate fees. As a result, the user of such a clause ends up paying the bill. Those who invoke the invalidity of the clause often have the respective fee waived as a supposed gesture of goodwill. As an entrepreneur, there is also the risk of being warned by consumer protection organisations or competitors for a fee due to ineffective GTC clauses. But even this "risk" does not seem to deter most users.

IV. Conclusion

We can only advise everyone not to accept flat-rate fees without reflection and to make any payments. In individual cases, a lawyer should always check the respective GTC clause and give their opinion. Our experience shows us that it will be worthwhile in many cases.

Tolga Topuz
Lawyer

December 2023 - Düsseldorf -

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