§ 288 abs. 5 BGB follows a claim by the creditor against the debtor, if this is not a consumer, on payment of a lump sum of 40.00 EUR If the debtor is in arrears. This claim is in addition to the interest claim.
With judgments from the 26.07.2016 and 08.06.2017, the district courts of Aachen – 113 C 8/16 – and Saarlouis – 25 C 205/17 (12) – have decided that a transfer of the default fee in accordance with § 288 abs. 5 BGB is not eligible for pre-judicial legal fees.
If the creditor makes use of the claim and the interest of a debt collection service provider or a lawyer, the resulting legal costs are not to be credited to the lump sum.
Pursuant to § 288 abs. 5 sentence 3 BGB, the lump sum is to be credited to a compensation due if the damage is justified in the costs of legal proceedings. This does not, however, include extrajudicial legal costs, since otherwise the standard would not do justice to its penal character. The purpose of the scheme is to encourage the debtor to conduct a swift payment.
Considerations of the EU Directive
The background to this, in our view, is the correct interpretation of recitals 19 and 20 of Directive 2011/7/EU, which does not take account of the lump sum to pre-judicial costs. It is therefore to be assumed that the little successful legal wording of § 288 abs. 5 Sentence 3 BGB is based on a faulty translation of the directive.
The BGH has now submitted the following question to the ECJ on the 18.01.2018 (BGH, ECJ proposal of 18 December 2002). January 2018 – III ZR 174/17):
“Is art. 6 paragraph 3 of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on the fight against late payment in business transactions (OJ L EU No. (l 48 p. 1) to be interpreted as meaning that the type of 6 paragraph (1) The lump sum of €40 referred to in the directive is to be offset against external prosecution costs incurred as a result of the debtor’s late payment due to the pre-litigation assignment of a lawyer and therefore by art. 6 paragraph 3 of the directive? “