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Increased additional fee in Hungary violates German ordre public

The decision from 4.2.2021 by the regional court in Munich (31 S 10 317/20) was rendered in a dispute over additional fees for unpaid road tolls. The Hungarian regulations provide, that users of the highways must buy a vignette. If they have not done it, they must pay a top-up fee which is five times higher than the basic price. When there is no payment within 60 days, an increased additional fee is owed. This one is again four times higher than the top-up fee. The appeal court only has to check the last fee for its legitimacy.

It was initially unproblematic that the defendant only rented the car and did not drive it itself. The court in Nürnberg-Fürth has already ruled at 30.7.2019, that owner liability does not violate the ordre public (16 S 9176/18). A violation of domestic basic principles fails because German civil law also includes owner liability.

In the second point, that the court had to determine was according to which regulation the applicable law is to be assessed. It firmly decided that contrary to the plaintiff’s opinion, there was no contractual relationship between claimant and the vehicle rental company.  The driver did not act on behalf of the defendant and the fact that the rental car company has not done anything to prevent a further journey after the first payment requests have been received does not establish a contractual relationship. As a result, the Rom II regulation is applicable.

Within this the question arose whether there is a violation of Art. 26. This is the case with claims for damages if they go much further than necessary to adequately compensate the injured person or obviously serve purposes other than adequate compensation for the injured person. The German court arguments that there is a violation of Art. 26 Rom II regulation. By that the increased additional fee is four times higher than the top-up fee, which itself is just as five times higher than the basic charge, no connection to the actual damage can be identified. According to this line of reasoning, the additional fee is not enforceable at a German court.

The judgment is not yet final and can still be reviewed by the German high court.