The gyms have long since reopened. But a dispute from the times of the Corona-related closures was still awaiting binding clarification: Can customers claim their money back? Now the Federal Court of Justice (BGH), the last instance in such questions, has given an answer – a clear yes.
A plaintiff from the Papenburg area had concluded a two-year contract with a fitness studio for 29.90 euros per month, which was to start in December 2019, so to speak on the eve of the pandemic. After only three months, the studio had to close by official order from March 16th to June 4th. The customer canceled and demanded his money back or at least a “voucher”, while the studio only offered a “credit for training time”, which the plaintiff refused. In short: they met in court.
As before the district and regional court, the BGH now also awarded the man a claim for reimbursement of almost 90 euros (Az. XII ZR 64/21). The tricky legal question was: Can’t you simply add the missed time to the end instead of granting the customer a claim for reimbursement? Legally, that would be possible if you view the pandemic and the official orders as “disruption to the basis of business”. Then the contract could simply be adjusted accordingly.
However, the Federal Court of Justice decided against this route. A unilateral extension of the term of the contract with the studio is therefore ruled out. It would be necessary for both sides to agree to make up for the lost time.
According to the BGH, the reason for this is that the point of such a contract is not to go to the studio later – fitness cannot be made up for. The operator owes the customer the opportunity to “continuously enter the studio and use the training equipment,” writes the BGH. Because the purpose is “regular physical activity” and thus serves fitness or the preservation of health. “Because of this, the regular and year-round opening and usability of the studio is of crucial importance for the contractual partner,” says the decision. The legal consequence of this is that if the studio is closed, it becomes “impossible” for the operator to provide its contractual service because it cannot be postponed – which means that the customer is no longer entitled to payment.
The question of the voucher remains. From May 2020, there was a voucher scheme for unusual “sports and other leisure events”, a measure to ensure the culture and leisure industry survived the pandemic. However, according to the BGH, this means a real voucher that can be redeemed for cash if necessary. The mere “credit for training time” is not sufficient. In addition, even a voucher would not have released the studio from its repayment obligation – because, if you look closely, it is nothing more than a deferral. The law grants a deadline until the end of 2021. If the voucher has not been redeemed for additional fitness hours by then, the customer can still request their money back.
Membership fees for sports clubs cannot be reclaimed
It is unclear whether many such disputes are still open. In most cases, both sides have probably reached a pragmatic agreement anyway. In any case, the judgment corresponds to the line that has been represented, for example, by the Federal Association of Consumer Organizations (VZBV), with reference to the judgments of courts from the lower instances. The consumer advocates also point to another clause in the Value Voucher Act. After that, redemption can also be refused if the reference to the voucher is unreasonable due to personal circumstances – i.e. in the event of an acute shortage of money. After the voucher period has expired, it should of course no longer play a decisive role.
As far as the other rights and obligations in connection with fitness, yoga or dance studios are concerned, the VZBV points out that customers were only entitled to terminate the contract after the periods specified in the contract – but not to termination without notice. Because the possibility of using the studio was not lost permanently with the temporary closure, but only for a manageable phase.
And there is one more thing to consider: what applies to studios cannot be easily transferred to clubs – for example to sports clubs. Because the membership fee is not a payment for a specific service, but promotes the purpose of the association. And a repayment obligation would not be compatible with that.