Amazon Prime price increase of up to 30%: Legally permissible?

Amazon is increasing the prices of its Prime subscription by up to 30%, depending on the type of subscription. Amazon sends emails to its customers and refers to a provision in its General Terms and Conditions to legitimize the increase. In light of a decision by the Federal Court of Justice (BGH) in the field of banking law, this approach is not without legal problems.

From Prof. Dr. Patrick RöslerProfessor of Banking Law at the Allensbach University

Amazon has announced a price increase for its Prime subscribers for fall 2022 of around 12% for the monthly membership and 30% for the annual membership. Whether this is justified is one question. Another is whether the price increase is legally possible in the way Amazon has announced. In principle, the courts do not review price increases and do not participate in free pricing in the market. This has its limits when the threshold of immorality is reached (§ 138 BGB) or when the law sets clear guidelines, e.g. for book prices in the Book Price Fixing Act. However, the way in which the price increase is implemented remains subject to review. In particular, the law on general terms and conditions (AGB law, Sections 305 et seq. of the German Civil Code) can be used for this purpose.

What are the criteria for a price increase?

Amazon initially changed its terms and conditions and informed customers of this by email. The reason for the change to the GTC was apparently a decision by the Banking Law Senate of the Federal Court of Justice on April 27, 2021, in which it prohibits banks from increasing fees if the customer has not expressly consented. The (invalid) clause in the GTC had enabled the bank to inform the customer of the increase and, if the customer did not object, the bank assumed that the customer had consented to the change (fictitious consent clause, see HERE). In the new terms and conditions, Amazon now regulates in detail the criteria according to which a price increase is possible:

"5.2 Changes to the membership fees

We are entitled to adjust the membership fee at our reasonable discretion and according to objectively justified and objective criteria. If you live in Germany or German law applies, § 315 BGB remains unaffected. An increase in the membership fee may be considered and a reduction in the membership fee must be made (in total: "Membership Fee Change") in order to pass on cost increases and/or cost savings incurred by us which are based on external circumstances beyond our control and which affect the specific costs of the Prime Service in your country, such as changes in the law, governmental decrees, general price changes for the required hardware and/or software, production and licensing, other general costs such as costs of external service providers, wage increases and/or changes in taxes and fees and/or general and material cost changes due to inflation or deflation. A change in the membership fee will only be made to the extent that our own costs and/or taxes and/or duties are reduced or increased overall. We will therefore only pass on cost increases to you if and to the extent that these are not offset by other cost reductions.

We will not make any changes to the membership fee that affect the contractual balance between the Prime service and the membership fee you pay for it.

5.3 Entry into force of general changes and changes to the membership fee

If we make general changes or changes to the membership fee (together: "change" or "changes"), we will notify you of the changes and the reasons for them in text form (e.g. by e-mail) within a reasonable period of at least 30 days before the changes come into effect. You can reject the changes. Your consent is deemed to have been given if you have not rejected the changes within a period of 30 days after receipt of the information about the changes. The changes will then take effect from the date that we have notified you in text form (e.g. by e-mail). However, a change to the membership fee will not take effect before the next membership fee is due.

You have the option of terminating your Prime membership free of charge in accordance with section 3.3 of these Terms and Conditions of Participation. At the beginning of the period of at least 30 days, we will inform you of the approval effect in the absence of a rejection, of the period applicable to the rejection and of your termination option.

Any amendments, including other amendments, which are based on your express prior consent shall remain unaffected by the provision in this Clause 5. If any amendment proves to be invalid, void or for any reason unenforceable, the validity and enforceability of the remaining amendments or conditions shall not be affected."

The BGH does not provide an exception for a fee increase

The first legal problem with the change is that the Prime user did not have to agree to these terms and conditions; in the information email, Amazon gave them the choice of accepting the changes or canceling their membership. This is no longer possible following the decision of the BGH of 27.04.2021, meaning that the amendment to the GTCs had no effect at all.

It is also necessary to examine whether the GTC provision would be effective if it had been effectively included in the contract. On first reading, the provision sounds reasonable, the fees (Amazon calls them fees, but only public authorities charge fees) can rise and fall if the costs for Amazon rise or fall. In these cases, Amazon can inform the customer of the change and continue to assume their consent qua fiction of consent, according to the regulation. However, the case law of the Federal Court of Justice is much stricter; it has only allowed exceptions to the prohibition of a fictitious consent clause if the service changes, provided that this only brings the customer an advantage, e.g. if the service is improved, in the case of technical innovations or if the legislator makes regulations that make a change to the contract necessary. However, the BGH makes no exception for an increase in charges. The regulations themselves are therefore likely to be on thin ice.

The customer "only" has to agree to the increase

Can Amazon now not increase its fees at all? Yes, of course. The customer "only" has to agree to the increase. However, this does not have to be done in writing with a signature, it could also be done technically via an agreement on the Prime page, e.g. It is not possible, however, to force the user to tick the consent box with an existing contract because otherwise they will no longer be able to use the offer. This can only be done voluntarily and without "coercion". If the customer does not agree, Amazon is of course free to terminate the contract with the customer.

If you are interested in such exciting topics from business law or the transfer of decisions from one industry to another, you should contact the B.A. Business Administration at Allensbach University of Applied Sciences which also teaches business law, is also a Focus on banking with banking law is possible.