In contrast to the view of the OLG, the BGH (Bundesgerichtshof – BGH) is of the view that the clause on the calculation of special fees for the use of credit cards abroad is, according to § 8 AGBG, excluded from review according to the standard of §§ 9 to 11 AGBG.
The BGH regards as decisive the fact that the use abroad fee is, according to § 8 AGBG, a determination of price for the contractual service offered and therefore free from judicial control and not, as for example as with deposits and withdrawals at the cash desk, a performance of independent services. A judicial review of the question of whether differing fees for individual variants of the availing of a contractual service is necessary or appropriate in the economic sense exceeds the limits of permissible judicial price controls. It therefore does not depend on whether and to what extent the respondent does in fact accrue further costs for use of the card abroad either. Furthermore, the rule on fees also does not deviate from the essential rights and duties of the contract, which according to § 8 AGBG could justify review according to §§ 9 to 11 AGBG, as the customer would in any case expect to have to pay an additional fee for use of the card abroad.
In the view of the BGH, the clause at issue is also valid to the extent that it does not relate to fees for other services in relation to the card. The clause is of course capable of review according to § 8 AGBG, as it does not concern a main service owed by the respondent, but rather is a facultative additional service offered and is therefore to be regarded as an ancillary (price) agreement; however, it is, according to § 9 AGBG, not reviewable on the issue of transparency, because the services for which fees are required are named in the price directory and are thereby sufficiently clear and comprehensible. Neither is it a charter for the introduction of new reasons for requiring fees, because the written notice, the right of cancellation, and the requirement of reasonableness and also the binding to equitable discretion all afford sufficient protection.