In the dispute over the legality of PayPal’s General Terms and Conditions (GTC), the Federation of German Consumer Organizations (Verbraucherzentrale Bundesverband) has also lost in the second instance before the 6th Civil Senate of the Higher Regional Court of Cologne. The plaintiff had requested that the payment service provider in Germany be prohibited from using its general terms and conditions – which have since been slightly amended and shortened – vis-à-vis consumers.
The plaintiff had argued that the defendant’s general terms and conditions were incomprehensible in their entirety and considerably too long. An average reader would need around 80 minutes to read them. It was therefore unreasonable to expect consumers to gain knowledge of the content of the provisions.
The 6th Civil Senate of the Higher Regional Court of Cologne dismissed the plaintiff’s appeal in its ruling dated February 19, 2020 and confirmed the judgment of the Regional Court of Cologne dismissing the action. The Senate essentially stated that it could constitute a breach of the so-called transparency requirement if the GTCs exceed a reasonable scope in relation to the significance of the transaction. However, the plaintiff had not demonstrated that the scope of the defendant’s general terms and conditions was unreasonable.
In this respect, the considerable number of 83 pages in printed form alone could not be taken into account. Rather, it should be taken into account that the GTCs enable the processing of a payment between five different persons. In addition to the payer, the payee and PayPal, banks and credit card companies may also be involved in a payment transaction. In addition, the consumer may not only be in the role of the payer, but also – for example in the case of refunds – in the role of the payee.
The plaintiff’s reference to the assessment using a “comprehensibility index” was not sufficiently substantiated. This is because the question of whether general terms and conditions are inadmissible in their entirety depends on numerous factors that cannot be reflected in a general index. For example, the use of foreign words can also be permissible if they are sufficiently explained. Insofar as the plaintiff had named individual clauses which he considered to be superfluous, this was not sufficient to prohibit the General Terms and Conditions in their entirety on the grounds that they were unreasonable to read. The naming of a few clauses in the context of the entire work is not sufficient for this (OLG Cologne, judgment of February 19, 2020, Ref. 6 U 184/19; source: PM of the Higher Regional Court of Cologne of 28.02.2020)