The effects of rising energy costs and the general increase in prices are being felt more and more by operators of fitness and health facilities. As a result, skillful crisis management is needed. We present some legal options to respond to the challenges.
The key points in a nutshell:
- Unilateral price adjustments by the gym operator are only permitted under certain conditions, and corresponding price adjustment clauses are subject to stringent legal requirements.
- In Germany, it is possible to agree additional costs with consumers, but there are restrictions under advertising law.
- Another way of saving resources or expanding one's own offering in a cost-saving manner in order to justify a premium increase is to set up a temporary or completely staff-less studio operation.
The electricity, heating and gas price brake passed by the legislature should provide compensation for rising energy costs. This came into force at the beginning of 2023, but cannot fully compensate for the price increase. Therefore, every entrepreneur has to look for further solution approaches in order to react appropriately to inflation.
A distinction should be made between the management of existing customers and the conclusion of legally secure and crisis-proof new contracts.
I. Optimizing existing contracts by adjusting energy prices
An increase in the respective contractually agreed membership fee for old contracts is not easily possible. Nor can an energy flat rate be demanded unilaterally. The principle of "pacta sunt servanda" or "contracts must be honored" applies. A contribution contractually agreed with the member cannot be unilaterally increased by the studio operator.
1. risks of a unilateral increase in membership fees
In practice, a premium increase is often announced unilaterally, the customer is given the opportunity to object, and if there is no objection, the premium is increased.
increased. It should be noted here that even if an objection period is set, the customer's consent to the premium increase is missing.
Silence on the part of the customer does not constitute a declaration of intent. In the case of consumers, even silence for years is no more than just silence, so that no declaration content can be concluded from this and the member can also generally reclaim the amounts overpaid to this extent within the general limitation period.
Tip: If a customer gives extraordinary notice of termination in response to the announced or implemented increase, the extraordinary notice of termination must be reinterpreted as an ordinary notice of termination. The customer has no extraordinary right of termination.
The prerequisite for an effective extraordinary termination is that the customer "warns" the studio - before issuing the termination - and demands that the premium for the contract term (remaining term) remains as agreed. Only after a warning and the expiry of a fruitless period would termination without notice be possible.
2. consensual price increases by means of contract adjustment tool
The ban on unilateral premium adjustments does not apply to mutually agreed price increases or energy flat rates agreed with the customer. The contract adjustment tool developed by Dr. Geisler, Dr. Franke Rechtsanwälte Partnerschaft mbB specifically for this purpose offers a legally secure option for agreeing on premium increases.
II. Making new customer contracts crisis-proof
In order to be able to react flexibly to changing economic conditions in the future, studio operators should design membership contracts in a legally secure manner.
1. unilateral price adjustment by the studio operator
An exception to the ban on unilateral price adjustments applies if the contract between the studio and the member grants the studio operator the right to adjust prices. If a corresponding price adjustment has been agreed individually, a higher fee can be demanded in the future without any problems.
A corresponding price adjustment clause in the membership contract is subject to high legal requirements due to consumer protection. Numerous price adjustment clauses have not withstood attacks by consumer protection associations.
Legal framework for a unilateral, contractual price adjustment clause
Price adjustment clauses serve to maintain the balance between price and performance in the event of price fluctuations and are intended to provide both contracting parties with cost certainty. They specify a concrete, higher membership fee at intervals (e.g. every 12 months) when the contract is concluded or grant each party the right to demand an adjustment of the contractually agreed fee in line with current price developments.
Since a concrete time-regulated price increase is generally permissible, the latter variant will be discussed in more detail at this point. With regard to the effectiveness of a clause that provides for a unilateral increase option, the so-called Price Clause Act (PrKG) and Sections 309 No. 1 and 307 of the German Civil Code (BGB) must be taken into account.
A so-called performance reservation clause, which is permissible under Section 1 (2) No. 1 PrKG, may be considered. In this clause, the parties agree that the amount of the contribution can be redefined by the party or a third party upon the occurrence of certain conditions. In this context, the reservation of benefits can also be linked to the fact that the consumer price index increases or decreases to an agreed extent.
The prerequisite is that, in any case, a limited scope of discretion is given, which makes it possible to determine the adjustment of the contribution according to so-called principles of equity.
As far as can be seen, however, there is still no case law on price clauses for fitness studios, dance and martial arts schools with regard to their effectiveness in consideration of the PrKG, so that the use of the clause is not without legal risks.
Even if a clause were to violate the PrKG, however, Section 8 PrKG must still be taken into account in this respect. According to this provision, the invalidity of a price clause only comes into effect at the time of the legally established violation of the PrKG.
Thus, the clause would be effective until a member has first brought an action for a declaratory judgment and has also prevailed with final legal effect. In such a case, it would be possible to react in advance, so that the PrKG must practically be regarded as a rather "calculable risk".
Further legal standards are § 305 ff. BGB, i.e. the law governing general terms and conditions. Pursuant to Section 307 of the German Civil Code, the validity of a price increase clause requires that the clause does not unreasonably disadvantage the contractual partner, in particular that it is not intransparent and that it complies with the fairness requirement under Section 307 (2) No. 2 of the German Civil Code.
A concrete formulation of the transparency requirement is the requirement of certainty, which requires that the factual prerequisites and legal consequences be described so precisely that no unjustified scope for assessment arises for the user.
It must be ensured that the contractual partner is already aware of the expected price adjustments when the contract is concluded and can roughly check the justification for the increase, including the extent of the increase. Arbitrary price adjustments are therefore ruled out, which is why lump-sum price increases agreed at the time the contract is concluded are invalid.
Price adjustment clause included in sample text generator
In order to provide our clients with a price adjustment clause that is as legally secure as possible, we have used the aforementioned legal framework. The clause we propose allows each contractual partner to adjust the contractually owed fee based on a change in the consumer price index officially determined by the Federal Statistical Office.
Important: The clause provides for both a premium increase and a premium decrease depending on whether the consumer price index increases or decreases.
A sample for the developed clause is provided in the sample text generator of Dr. Geisler, Dr. Franke Partnerschaft mbB and, if required, directly integrated into the contract. The law firm also provides a script for the legally secure handling of price adjustment clauses.
2 Current case law on (additional charge) clauses in contracts
Many studio operators charge fees in their contracts in addition to the regular fees, such as chip card or transponder fees as well as service or trainer fees.
In October 2022, two decisions were handed down in Austria by Austria's highest civil court, the Supreme Court (OGH). The court ordered a fitness studio chain to refrain in the future from charging customers an administration and chip card fee of €19.90 each in addition to the pure membership fee at the beginning of the contract, as well as ongoing service fees of €19.90 every six months.
According to Austrian law, the studio chain is not only not allowed to continue the previous calculation practice, but it even has to refund to the customers all administrative, chip card and service flat rate payments charged so far.
We summarize for you the legal situation in Germany with regard to the calculation of additional charges. Under German law, a distinction must be made between pricing that is permissible under civil law, which is necessary for the additional charges to be actionable in the event of a dispute, and the legal requirements that must be met in order to be able to advertise the prices charged in a legally secure manner.
In Germany, this leads to a situation in which it is perfectly possible for a studio operator to agree additional charges with consumers in a legally secure manner from a civil law perspective, provided that they are structured appropriately; however, it is virtually impossible for the studio operator to advertise the prices charged in a legally secure manner.
If all the requirements under advertising law are met, there is no advertising effectiveness. The reason for this is the Price Indication Ordinance (PAngV), and in particular Section 3 (1) thereof, according to which an entrepreneur who offers services to consumers or advertises as a provider of services to consumers must always state the total price, which leads to considerable difficulties under advertising law.
Admissibility of additional charges under civil law
In Germany, the principle of freedom of contract applies, so that every entrepreneur is basically free to calculate and set the prices for his services. As an individual agreement, a contractual price fixing must be transparent, i.e. clearly presented and defined in the contract.
In principle, there is no judicial review of the appropriateness of a price for a service. However, the appropriateness of a price may be subject to judicial review if it is not a price agreement but merely an ancillary price agreement.
The case law always assumes that a price supplementary agreement is reviewable if the entrepreneur prices and charges for services that he has to provide anyway in order to fulfill his contractually owed main and ancillary performance obligations.
In these cases, case law argues that the contractor is using such ancillary price agreements in an impermissible manner to try to price services not desired by the customer. He does this in order to pass on general operating costs or expenses for the fulfillment of his own legal or contractual secondary obligations to the customer.
For example, the studio operator is obliged to provide a chip card (or other access authorization) anyway due to its duty to provide the customer with access to the facility. Charging the customer additional fees for the provision of a chip card therefore represents a passing on of expenses for the fulfillment of the customer's own ancillary contractual obligations, so that this is a verifiable ancillary price agreement.
In view of these principles, it is recommended that ancillary price agreements be avoided and that the costs claimed in this way be included in the regular charge. In addition, all prices charged should be defined in the contract in a comprehensible manner, and the prices charged should be compared with actual benefits for the member.
Admissibility of advertising price offers
If studio operators wish to advertise the prices they offer, the information must be permissible under competition law. According to § 3 of the Price Indication Ordinance (Preisangabenverordnung), there is a requirement for a total price indication.
It follows from the Price Indication Ordinance and case law that it is fundamentally impermissible, at least in advertising, to advertise monthly or weekly prices for contract offers if, in addition to the weekly or monthly prices, further costs that must be paid by the customer are charged. In addition to the total price for the entire term, a monthly average total price must also be stated.
Special features of contract offers for online contracts
In addition to Section 3 of the Price Indication Ordinance, Article 246a Section 1 Nos. 5 and 8 of the Introductory Act to the German Civil Code (EGBGB) and Section 6 of the Price Indication Ordinance must also be observed for price quotations made in the context of online contract offers. This means that in addition to the total of all costs charged during the term of the contract and their due dates, the total monthly costs must also be stated in the price information provided for the contract that can be concluded online.
In other words, the sum of all amounts to be paid during the contract term divided by the number of months of the contract term, as well as the indication that the stated prices include the statutory value-added tax.
III. Cost efficiency through unstaffed studio operation
Another way to save resources in cost-intensive times or to expand one's range of services in a cost-saving manner in order to justify a premium increase is to set up a temporary or completely staff-less studio operation.
In order to enable the legally compliant operation of a staff-less studio, we have developed an integrated concept in collaboration with various cooperation partners that mitigates conceivable liability risks. With our 4-pillar concept consisting of legal protection, insurance protection, safety protection and a SafeWatch as well as an intelligent video and defibrillator system, liability risks are largely eliminated.
Source and image source: BODYMEDIA
Published on: 25 July 2023