Dhe five central associations of German banks have for years charged excessive fees for the use of the electronic cash process from dealers, oil companies and Deutsche Bahn. On Thursday, Civil Chamber 16 of the Berlin Regional Court confirmed that the retailer’s fee, which was customary up until 2014, had been violated antitrust law. Nonetheless, many of the 33 plaintiffs in the 11 civil lawsuits failed to settle their claims. The civil judges dismissed a large part of the antitrust claims for damages with a total volume of around 150 million euros, including the pilot lawsuit by the drugstore company Rossmann (Az. 16 O 110/18 Kart and others).
The heart of the dispute was a uniform fee set by the associations of 0.3 percent of the respective turnover, but at least 8 cents, which companies in Germany paid for every payment transaction with the giro or EC card until 2014. A reduced rate applied to transactions at petrol stations. The Federal Cartel Office reprimanded the procedure, but ultimately refrained from taking any action. From then on, the fees had to be negotiated.
150 million euros in claims
Without naming names, the court announced that the lawsuits brought by the mineral oil companies were unsuccessful overall because the civil chamber in these cases was largely unable to determine any damage relevant to antitrust law. In one case, damage had occurred, but the claim was time-barred. The other lawsuits were partly successful and partly unsuccessful for different legal reasons. “In this respect, the district court found that compensable damage could have occurred, but that this cannot be claimed at all or only partially for various legal reasons such as the statute of limitations,” the court said.
With his lawsuit, Rossmann had demanded damages of 8.5 million euros for a period of ten years, during which excessive card fees were paid. In addition, the banks should bear the costs of legal action and the expert opinions customary in cartel damage claims in the amount of 180,000 euros. The lawsuit was dismissed in its entirety, said a justice spokeswoman.
As can be seen from an overview of the various decisions of the Civil Chamber, this also applies to the lawsuit filed by the petrol station operator Jet for 33 million euros. Jet was the first company affected to file a lawsuit in Berlin in 2017 (Az. 16 O 309/17 Kart). Deutsche Bahn was only able to enforce a small part of its claims, the shoe retailer Deichmann was awarded more than 352,000 euros including interest.
“Unsatisfactory” for injured parties
When asked, Rossmann’s lawyer, János Morlin, stated in writing that the decisions were unsatisfactory overall from the point of view of the injured party. It should be disappointing for the plaintiffs that the court estimated the amount of the damage. The judges compared the earlier period of the uniform dealer fee of 0.3 percent with the fees negotiated from November 2014. On this basis, in numerous cases, there is no longer any measurable damage, criticized plaintiff attorney Morlin. An appeal against the verdicts is considered likely.
On the other hand, the Deutsche Kreditwirtschaft (DK), joint representative of the five leading bank associations, saw its opinion that the plaintiffs had not suffered any damage essentially confirmed by the court. A spokesman emphasized on Thursday that the electronic cash process of the German banking industry had always been significantly cheaper for retailers than credit card-based payment processes.