On April 7, 2020, the FCJ confirmed a FCO decision finding some of the German Banking Industry Committee’s (Deutsche Kreditwirtschaft, “GBIC”) model T&Cs for online banking to be anticompetitive.[1]

The model T&Cs for banking services recommended by the GBIC, the umbrella organization of most German banks, serve as an industry standard and are, in practice, adopted by all member banks. In 2016, the FCO found that the 2009 version of GBIC’s online banking services T&Cs restricted the customers’ use of their online banking information.[2] In particular, they prohibited customers from using their PIN and TAN to access their accounts when using third-party payment initiation services providers[3] such as Klarna Bank AB.[4] In the FCO’s view, these restrictions were not indispensable to ensuring security in online banking. Rather, the specific provisions constituted a by-object infringement of competition law since their main purpose was to exclude alternative payment service providers from the market or make their market entry considerably more difficult.

GBIC appealed the decision to the DCA, which confirmed the FCO’s findings.[5] Interestingly, during the proceedings, a law based on the 2015 Payment Services Directive entered into force which obliged banks to allow their customers to use payment initiation services.[6] As a result, the GBIC had to amend their model T&Cs and drop the clauses contested by the FCO. Although the GBIC was no longer directly affected by the FCO’s decision, the DCA held that the GBIC’s appeal was admissible and issued a reasoned judgment, as the FCO’s decision could serve as a basis for potential follow-on damages actions.

The DCA did not allow an appeal against its decision and GBIC therefore filed a complaint with the FCJ. Following the FCJ’s dismissal, the FCO’s decision is now final and binding.

[1]      FCJ decision (KVR 13/19) of April 7, 2020, only available in German here.

[2]      FCO decision (B4-71/10) of June 26, 2016, only available in German here; see the FCO’s Press Release of July 7, 2016 available in English here.

[3]      Payment initiation service providers allow customers in web shops to conduct bank transfers comfortably by entering their online banking information including PIN and TAN directly on the shop’s website.

[4]      At the time operating through Sofort GmbH under the brand name “Sofortüberweisung” in Germany.

[5]      DCA decision (VI-Kart 7/16 (V)) of January 30, 2019, only available in German here.

[6]      Directive (EU) 2015/2366 on payment services in the internal market, which was transposed into German law as Sections 675c et seqq. of the German Civil Code (BGB).