A reform is pending for private pension provision à la Riester pension. But existing contracts should continue to apply. Many consumers will also be interested in legal disputes.
On Tuesday, the Federal Court of Justice (BGH) will deal with a clause on acquisition and brokerage costs that a savings bank in Bavaria used in one of its Riester retirement provision models. A judgment could affect numerous contracts. But the devil is in the details.
Specifically, according to the BGH, it is about the provision: “If a life annuity is agreed, the saver may be charged for closing and/or brokerage costs.” Life annuities are additional pensions that are usually paid until death. From the point of view of the Baden-Württemberg consumer advice center, the clause is ineffective because it is not clear and understandable and therefore puts savers at an unreasonable disadvantage, contrary to the requirements of good faith.
As a spokesman for the German Savings Banks and Giro Association explained, it depends on entering the payout phase after the savings phase. Customers then commissioned the savings bank to take out an immediate (immediate annuity) or deferred life annuity (payment plan) with an insurance company. “It is only in this context that costs are incurred, which the clause at issue here points out to the customer when the savings phase contract is concluded.” These were not incurred directly by the savings bank, but rather by the third-party provider.
The regional court and the higher regional court (OLG) in Munich had ruled in favor of the consumer advocates. In contrast, the Sparkasse Günzburg-Krumbach went into appeal. It is unclear whether the BGH in Karlsruhe will make a judgment on Tuesday.
Riester contract offered nationwide
According to information from the consumer advice center, a large number of customers from Baden-Württemberg are affected. The Sparkasse Günzburg-Krumbach has offered its Riester contract nationwide. It was also said that the clause was included in the contracts of various savings banks. “In principle, the decision could also affect other Riester savings contracts, provided that these also contain non-transparent clauses about the costs of transitioning to pension benefits.”
For his part, the spokesman for the savings banks association explained that savings banks had offered various variants of “S-Vorsorge Plus” contracts. “Ultimately, each savings bank designs its clauses/contracts individually, so that no general statements can be made in this regard.” The institutes no longer offer the product. Unlike the OLG, the association does not assess the clause as a cost clause, but rather as a notice required by the Retirement Provision Contract Certification Act.
As a result, the assessment of what consequences a judgment could have also differ. If the BGH were to view the passage as a cost clause, the savings bank could, from the association’s perspective, demand reimbursement for the costs incurred by the third-party provider.
Niels Nauhauser, head of the pension provision, banks and loans department at the Baden-Württemberg consumer advice center, however, said: “If the BGH judges the clause to be unlawful due to a lack of transparency, it will be removed without replacement.” The substantive justification then becomes decisive. “According to our current legal opinion, the savings bank contractually owes a pension payment and is not allowed to pass on costs that arise in connection with retirement to its customers.”