Term and Introduction: The Price Surcharge Prohibition
The price surcharge prohibition is a central concept in German price law and refers to the statutory or contractual prohibition of charging a surcharge or markup on a previously agreed or established price afterwards. The purpose of this prohibition is to ensure transparency and legal certainty in business transactions, to prevent distortions of competition, and to strengthen consumer protection. The price surcharge prohibition plays a significant role, particularly in public price law, private contract law, as well as in connection with the Price Indication Ordinance and competition law.
Legal Basis and Standardization
Public Price Regulations
In public price law, especially in relation to public contracts or sectors subject to price regulation (such as pharmacies, fixed book prices, or the energy sector), the price surcharge prohibition often applies due to specific legal provisions. Key regulations can be found, among others, in the Act Against Restraints of Competition (GWB), in the Regulation on Prices for Public Contracts (VO PR No. 30/53), as well as in specialized legal provisions such as the Medicinal Product Price Ordinance.
Price Regulation for Public Contracts
According to VO PR No. 30/53 (“Regulation on Prices for Public Contracts”), agreed prices in public procurement may not be increased by surcharges after conclusion of the contract, unless this is expressly agreed or provided for by law. This is particularly intended to prevent subsequent claims due to later cost increases or facts that become known subsequently.
Private Law Contracts
In private law, the price surcharge prohibition is mainly rooted in the German Civil Code (BGB). According to § 307 para. 1 BGB, price adjustment clauses that allow a subsequent increase of the agreed prices (if these are disadvantageous and non-transparent for the contracting partner) are generally invalid. Contracting parties are therefore in principle bound to the price once agreed, unless a valid price adjustment clause exists.
General Terms and Conditions and the Transparency Requirement
According to the transparency requirement of the BGB, clauses regarding price surcharges in General Terms and Conditions (GTC) must be clearly and understandably formulated. Unclear or surprising price surcharges are void according to § 305c and § 307 BGB.
Price Indication Ordinance and Consumer Protection
According to the Price Indication Ordinance (PAngV), companies may only state final prices to consumers that include all incurred costs. Subsequent price surcharges are therefore generally excluded, unless additional costs were clearly disclosed before the contract was concluded. This strengthens transparency and protects consumers from hidden extra costs.
Areas of Application and Practical Relevance
Construction Contract and Contract for Work
The price surcharge prohibition is particularly relevant in the law governing contracts for work, especially in construction contracts. If a fixed price or unit price has been agreed, it remains generally binding. Subsequent surcharges are only permissible under strict legal conditions, e.g., when the allocation quantities change according to § 650c BGB or in the case of unforeseeable cost increases, only subject to a respective contractual provision.
Trade Law and Regulated Industries
In regulated markets, for example in energy supply or fees for certain services, public price regulations often require that price surcharges are only possible under strict legal conditions.
Commercial Law
In commercial law, contractual freedom generally applies. Price surcharges are permissible here only if they have been clearly agreed in the contract and both the contract itself and the level of transparency comply with § 307 para. 1 BGB.
Judicial Decisions on the Price Surcharge Prohibition
Civil and administrative courts have concretized the price surcharge prohibition in many cases. Case law emphasizes that price surcharges are generally impermissible if asserted after conclusion of the contract and without an express contractual basis. Impermissible price surcharges in GTCs render the relevant clause ineffective and often oblige companies to reimburse excessive amounts paid.
A frequent point of contention is the interpretation of price adjustment and price escalation clauses. The Federal Court of Justice (BGH) requires clear and consumer-comprehensible drafting and limits possible price adjustment rights to foreseeable and objectively justified cases.
Sanctions for Violations
Violations of the price surcharge prohibition may result in civil law and, in some cases, public law consequences. Under civil law, the price clause may be rendered invalid and, where appropriate, previously paid surcharges may have to be reimbursed. In public price law, fines and exclusion from public contracts are possible. In addition, violations of competition law can be subject to warnings and pursued before the courts.
Exceptions and Permissible Surcharges
The price surcharge prohibition is not absolute. There are numerous exceptions, in particular:
- Legally Permitted Surcharges: e.g., VAT, statutory fees.
- Contractually Agreed Surcharges: especially in the case of explicit price adjustment clauses.
- Public Charges: Subsequent changes in taxes or charges may, if expressly agreed, be passed on to the customer.
Without such a basis, a price surcharge is not permitted.
Literature and Further References
- Act Against Restraints of Competition (GWB)
- Regulation on Prices for Public Contracts (VO PR No. 30/53)
- German Civil Code (BGB)
- Price Indication Ordinance (PAngV)
- Medicinal Product Price Ordinance
- Case Law of the Federal Court of Justice (BGH) on Price Change Clauses in General Terms and Conditions
Conclusion
The price surcharge prohibition establishes a vital framework for transparency and legal certainty in German price law. It protects contracting parties, especially consumers and public bodies, from subsequent, non-agreed price claims and promotes fair competition. Business owners and companies should therefore ensure that price surcharges are levied only on the basis of clear contractual or statutory provisions and that their contract documents are transparent. Violations of the prohibition can entail significant legal and financial risks.
Frequently Asked Questions
When does the price surcharge prohibition apply and in which areas of law is it relevant?
The price surcharge prohibition applies in particular in statutory price law, which is especially anchored in German commercial and consumer law. Fundamentally, the price surcharge prohibition under § 3 para. 1 PAngV (Price Indication Ordinance) regulates that consumers may not be charged additional price components that are not included in the stated total price. This principle mainly applies when purchasing goods and services to ensure transparency for consumers. The regulation concerns both brick-and-mortar and online retail. Moreover, numerous special laws outside the PAngV, such as in energy law or passenger transport law, prohibit surcharges without express disclosure. In a few cases, such as for variable additional services in air transport, there are statutory exceptions.
What exceptions to the price surcharge prohibition are legally permitted?
Exceptions to the price surcharge prohibition primarily exist for individually selectable services, which the consumer expressly selects and orders in addition to the basic offer (so-called ‘optional additional services’). In such cases, it is permitted under § 3a PAngV and in light of the EU Consumer Rights Directive to charge separate surcharges for these additional services, provided the total price for the chosen service is clearly and unequivocally indicated. Further exceptions exist for certain taxes or public-law charges that are outside the entrepreneur’s responsibility, e.g., value added tax for foreign services, provided this is transparently disclosed. In addition, sector-specific industries (e.g., energy supply, waste management) are subject to their own legal frameworks that may permit surcharges under special conditions.
What legal consequences are threatened by a violation of the price surcharge prohibition?
A violation of the price surcharge prohibition exposes the provider to extensive legal consequences. Civil law consequences include, in particular, claims for injunctive relief, removal, and damages by consumer associations or competitors due to unfair commercial practices under § 5a UWG (Act Against Unfair Competition) in conjunction with § 3 PAngV. In addition, supervisory authorities may impose fines, with the amount depending on the severity and duration of the violation. In severe cases, warnings, interim injunctions, or court actions may result. The ineffectiveness of individual price clauses in contracts can also result, potentially leading to the reimbursement of overpaid amounts.
To what extent does the price surcharge prohibition affect online shop operators?
Online shop operators are legally obliged under the Price Indication Ordinance to always indicate to end consumers the full final price including all price components. In particular, surcharges such as those for payment methods (PayPal, credit card), shipping costs, or packaging must be disclosed transparently before completion of the order process and included in the total price, provided they are mandatory. According to a ruling by the European Court of Justice (ECJ) and the Federal Court of Justice (BGH), additional surcharges that are not transparently disclosed in the order process may not be charged subsequently. When offering optional additional services, their price must be clearly indicated and the scope of service explained in a comprehensible manner to avoid deception and circumvention of the price surcharge prohibition.
How is the price surcharge prohibition monitored and who is responsible for its enforcement?
Monitoring of the price surcharge prohibition in Germany is primarily the responsibility of regulatory authorities, the Centre for Protection against Unfair Competition, consumer associations, and the market surveillance authorities of the federal states. They may conduct random checks or investigate infringements based on consumer reports. In case of violations, these bodies are authorized to take measures such as issuing warnings, cease and desist orders, or initiating fine procedures. Additionally, competitors also have the right to bring claims for competition violations under the UWG. Judicial enforcement is usually carried out by the civil courts.
How does the price surcharge prohibition relate to so-called service fees or processing charges?
Service fees or processing charges may only be shown and charged separately if they concern genuine, voluntarily selectable additional services. However, if they are mandatory charges that are inevitably incurred, they are subject to the price surcharge prohibition and must already be included in the total price. Otherwise, it would constitute an impermissible surcharge and thus a violation of price law. This applies regardless of the name of the fee. The BGH case law has repeatedly made it clear that mandatory components of an offer may not be added to the final price separately. In case of infringements, providers face warnings, repayment claims, and, where applicable, fines.
Are there differences in the price surcharge prohibition between B2B and B2C transactions?
The price surcharge prohibition primarily applies to the relationship between businesses and end consumers (B2C). The provisions of the PAngV as well as relevant consumer protection laws refer exclusively to private customers. In business-to-business (B2B) transactions, there is generally no legal obligation to indicate a final price including all components. The contractual freedom in the B2B sector allows the parties to negotiate price components individually. However, certain information obligations and transparency principles under the general rules of commercial law must also be observed in this context, especially if there is misleading conduct or violation of good morals.
