by Simone Grneweg, Euro on Sunday
Now the banks are getting serious. Postbank customers who have not yet agreed to the bank’s custody fee will have their accounts terminated. According to information from the “Handelsblatt”, ING, Germany’s largest direct bank, also wants to terminate a four-digit number of customers who have also not agreed to the announced negative interest rates. In the past few weeks, many smaller banks have given customers the run-out for the same reason. These terminations escalate a conflict that has been smoldering ever since the first institutes raised their fees because of the low interest rates or started charging penalty interest. The current dismissals will also occupy the courts again.
There was great joy last April when the Federal Court of Justice (BGH) passed a verdict in the interests of bank customers on a similar subject. According to the judge’s verdict, it’s legal to reclaim overpaid bank account fees. In practice, however, the world looks different: anyone who writes to their bank and asks for their money back is often disappointed. Some institutes refuse to recognize claims. Others simply end the customer relationship. uro on Sunday summarizes the legal situation and shows those affected how they can react.
What was the BGH judgment about?
Money houses have made it easy for themselves in recent years by increasing account fees. If they change their terms and conditions, they usually inform their customers in writing two months in advance. If they didn’t respond, it was taken as tacit approval. This is what the clauses in the general terms and conditions stipulate. In April 2021, the BGH declared the corresponding clause in Postbank’s general terms and conditions to be invalid (Az. XI ZR 26/20). An important judgement, since since then banks have required their customers’ explicit approval if they charge significantly more money for services. Most financial institutions have used the clauses, so many customers are affected by the judge’s verdict.
What were the consequences of the verdict?
“Bank customers should check their account contracts for the relevant terms and conditions clauses,” advised David Bode, legal officer at the Federal Association of Consumer Organizations (vzbv), immediately after the verdict. The reason for the advice: Customers can get back the unfairly charged fees. It’s not just about the account management fee, but also about fees for credit cards, transfers or account statements. On average, it is about 120 euros per customer, calculated the finance portal Biallo. For the banks in this country, it’s about several billion euros. A few months after the verdict, however, it became apparent that what sounds good in theory does not work particularly well in practice. In any case, many customers are still unclear as to when and how much money they will get back.
What must customers do?
“Actually, the credit institutes should approach their customers on their own initiative and pay back any money they have taken without authorization,” says Andrea Heyer, deputy director of the consumer advice center in Saxony. The banks see things differently. According to the principles of civil law, there is no proactive obligation to reimburse, according to the Association of German Banks. “The credit institutes will, of course, examine the claims made to them individually and within a reasonable period of time,” writes the association. Anyone who wants the money back usually has to take care of it themselves. Corresponding sample letters exist for customers. You can find them on the page www. Verbraucherzentrale.de on the Internet. Letters to the bank without specific information are also possible, but this often causes queries. The more concrete consumers name their demands, the better. Customers can request a statement of charges from the bank or search their bank records for information. Another possibility: You specifically check older price and service lists. These may be available from the bank itself or on the Internet – for example at www.archive.org/web, an Internet archive. In the search mask you have to enter the Internet address of the current price list. If you’re lucky, you’ll find older directories. Customers should also keep an eye on the statute of limitations, Heyer warns. Most experts assume that the right to reimbursement expires after three years at the end of the year. Prohibited charges from 2019 can therefore be reclaimed until December 31, 2022.
How are the banks reacting?
There are positive examples. Sparda Bank Hannover, for example, offers a standardized form for customers. “They can enter their claims there,” explains the Bremen lawyer Dietmar Klinger. The financial regulator Bafin points out that customers are entitled to assert claims for reimbursement.
However, some money houses refuse to pay anything or play for time. The vzbv has therefore filed model lawsuits against Berliner Sparkasse and Sparkasse KlnBonn. In the opinion of the Berliner Sparkasse, consumers cannot request reimbursement if they have not complained about the prices in the past three years. The institute relies on a corresponding BGH judgment on energy contracts from 2016 (Az. VIII ZR 241/15) and sees itself exonerated. The consumer advocates want a general clarification.
The Volksbank Welzheim also made headlines. She had suggested to around 7,000 customers that they forego the refund and instead continue to use the current account at the previous price of five euros per month. Otherwise there is a risk of termination. Consumer advocates complained about it. The district court of Stuttgart dismissed the lawsuit (Az. 34 O 98/21 KfH). Banks would have a right to terminate customers if they did not agree to the terms and conditions. The case is likely to drag through other instances.
The examples show that the situation is not becoming any clearer for consumers. In the end, everyone has to decide for themselves how much they want to argue with their bank, especially since: “It cannot be ruled out that an institution will still find some understandable reason when it wants to get rid of an unwelcome customer,” says lawyer Klinger.
Where can I get legal help?
Consumer advice centers and lawyers offer help. “However, you always have to consider the cost-benefit ratio,” says Klinger. A few law firms work together with so-called legal techs to request money back for many customers in a highly automated manner. Providers such as Gansel Rechtsanwlte with Spreefels GmbH or the service provider Justify try to enforce the claim in the so-called collection model. If successful, they transfer the reimbursed fees and keep about a quarter as a fee. Anyone who has already contacted the bank and does not get any further can also contact an arbitration board. The whole thing is free of charge and inhibits the statute of limitations. You can contact private banks at the e-mail address [email protected], with the savings banks at [email protected]. “Anyone who contacts the ombudsman should be able to quantify their claim precisely,” says Klinger. Otherwise you won’t get any further there.
Should I consent retrospectively?
Some banks act briskly and demand retrospective approval. If you don’t want that, you don’t have to sign this request. “From our point of view, there is no reason to go into this,” says Andrea Heyer. However, one also has to say: Those who don’t care about the overpaid fees and charges can agree – but then they no longer have any claims to them. In the future, the banks will have to have increases approved. If a customer refuses, he does not have to pay, but he can expect the account to be terminated. Such a scenario is likely to threaten a mid-five-digit number of Postbank customers. Those affected probably did not agree to the current prices and conditions after repeated requests. “If the customers don’t react, it means that they don’t agree to the new terms and conditions. The bank can then end the business relationship by giving notice, subject to a reasonable period of notice,” explains Heyer.
Should I look for a new account?
There is a wide range: there are around 1,700 banks in Germany offering around 3,500 different account models. That doesn’t make the choice any easier, because there are hardly any free accounts anymore. Finanzberatung FMH has selected giro accounts for uro am Sonntag for which no monthly fee is due (see table below). Only banks that are active nationwide were taken into account. The change has been easier for a few years, because the Payment Accounts Act has been in force since 2016. It obliges banks to help with account switching.
What do courts say about this?
A number of financial institutions ask their customers to pay when their credit balance exceeds a certain amount. Banks and consumer advocates argue about whether custody fees or penalty interest are allowed. There are now court rulings on this. The Leipzig Regional Court ruled in 2021 that Sparkasse Vogtland may charge a custody fee for new private current accounts and for existing customers after a change of account model for the custody of deposits of more than 5,000 euros (Az. 5 O 640/20). In 2021, the Berlin Regional Court was of the opinion that the safekeeping of deposits in current and overnight money accounts is not a “special service” for which a bank may charge a separate fee (Az. 16 O43/21). The Dsseldorf District Court also decided that banks are not allowed to charge a separate fee for the safekeeping of deposits in current accounts (Az. 12 O 34/21). This is not compatible with the legal regulations on the giro contract.
What does that mean for customers?
“We are pleased with the judgments mentioned, even if they are not the end of the story,” said Andrea Heyer. Presumably, however, there will only be final clarity here with a BGH case law. Consumers can at least hold the judgments against the demanding money houses. However, the banks will hardly be impressed by this. “It always depends on the individual case, the exact contracts and the details,” emphasizes Klinger. First of all, consumers who are customers of the institutes affected by court decisions will benefit.
And what can other customers do? You can try to spread your savings across different accounts to stay under each allowance. Or they wait and hope that this phenomenon will eventually go away on its own, perhaps with interest rates rising.
Current accounts with no monthly fee (pdf)
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Image sources: Addoro / Shutterstock.com, Bjoern Wylezich / Shutterstock.com, Finanzen Verlag
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