Federal Court of Justice examines
Unacceptable bank fees – what do customers get in return?
Increase account fees without the active consent of customers? The Federal Court of Justice has already banned banks and savings banks from doing this in 2021. Now it’s a question of how far reimbursement claims will decline.
Many consumers pay monthly account management fees for their checking accounts. If your bank or savings bank wants to increase fees, it must first obtain active consent from customers. In the past this was not always the case. This is not the first time that a dispute over account fees has ended up at the Federal Court of Justice (BGH) in Karlsruhe. What it’s about this time:
What are account management fees?
“The administration and operation of a current account naturally incurs costs,” says Christian Urban, head of the finance and insurance group at the North Rhine-Westphalia Consumer Center. “In principle, it is therefore not objectionable if banks and savings banks charge a fee for this.” Whether and in what form fees are charged can therefore vary: from free current accounts to those with account management fees to models in which each individual booking has to be paid for.
What can consumers do if the bank increases fees?
If the account becomes more expensive, consumers can either actively agree, cancel or refuse their consent, explains Urban. In the latter case, however, there is a risk of termination by the bank. Even then, there is still enough time to look for a new bank, as the institution must give at least two months’ notice. However, anyone who wants to agree to the fees should generally do so actively, according to the financial expert. “Unlike in the past, banks are no longer allowed to assume that customers agree to the price increase if they simply do not respond to notification of the price increase.”
What is a consent fiction clause?
The so-called consent fiction clause is a contractual clause that states that changes to the contractual terms and conditions are deemed to have been accepted if customers do not object within a certain period of time. This is also called tacit consent. There have also been corresponding clauses in the general terms and conditions of banks and savings banks in the past, says Urban. However, the BGH declared them ineffective in 2021 because the clauses were too far-reaching and customers were unreasonably disadvantaged (ref. XI ZR 26/20).
What is it about in Karlsruhe this time?
“As a result of the Federal Court of Justice’s decision in 2021, many consumers were able to demand back bank fees they had paid if they were based on an ineffective fictitious consent clause,” says Urban. The previously open question of how far back these reimbursement claims go and how high they are will now be clarified at the highest German civil court. “The question that will play a particular role is whether the so-called three-year solution that the BGH has developed for energy supply contracts can be transferred to current account contracts.” According to this solution, only the price increases of the last three years would be reimbursed.
How did the issue end up at the BGH?
On Tuesday, the Eleventh Civil Senate in Karlsruhe, which is responsible for banking law, will hear a man’s lawsuit against his savings bank. At the beginning of 2018, it began charging fees for his checking account without his active consent and was based on a fictional consent clause. The account holder filed an objection in July 2021 – and ultimately went to court to demand a refund of the fees charged from 2018 to 2021. The Ingolstadt regional court ruled in the lower instance that the plaintiff was not entitled to reimbursement of the fees because he only objected to their collection after three years. The man appealed. It is unclear whether a verdict will be made on Tuesday. (Ref. XI ZR 139/23)
What impact could the ruling have?
Despite the consumer-friendly BGH ruling in 2021, only a few consumers have asserted reimbursement claims against their own bank. This is shown by a representative survey conducted by the comparison portal Verivox in the spring. According to this, only 11 percent of all customers asked for money back from their bank – even though at least 40 percent had their accounts become more expensive in the three years before the ruling. “Regardless of the outcome of the current proceedings, German banks and savings banks will be able to keep the lion’s share of their illegally collected account fees,” says Oliver Maier, Managing Director of Verivox Finanzvergleich GmbH. “The credit institutions got off very lightly.”
dpa
Source: Stern
