It is nothing new for bank customers that credit institutions like to turn the charge screw. And mostly the bank account becomes more and more expensive due to various fees. But can banks just increase their fees? The Federal Court of Justice had to judge this and clearly rejected the self-service mentality of the financial institutions.
In recent years, almost all banks have turned the fee screw and increased account fees or other costs for banking services. In this way, free checking accounts suddenly became paid accounts. We recently reported on Commerzbank’s current fee increase.
The increases all followed the same pattern, which bank customers have long considered unfair. The banks simply communicated their new fee expectations by letter, email or in the price notice. If the bank customer did not actively object, the new fees were calculated.
The financial expert Andrea Heyer from the consumer center in Saxony explains that this is not about peanuts: “That can be three-digit amounts for the individual.” In plain language: The banks were of the opinion that they did not need explicit consent from their customers in order to increase the fees. It is precisely against this approach that the consumer advice center sued – with success.
What exactly was the process about?
The Federal Association of Consumer Centers and Consumer Associations sued in a test case against the clauses that banks and savings banks predominantly use. According to these, banks can make changes to their general terms and conditions if these are communicated to the customer in writing at least two months before the proposed date of their entry into force. However, the customer does not have to actively agree to the changes. In the opinion of the banks, the customer’s consent is deemed to have been given if he has not indicated his refusal before the changes take effect.
The use of these clauses has been common practice up to now, because the banks considered a lack of reaction from the consumer as consent. It didn’t matter whether the customer was even aware of the change. Many bank customers only noticed when calculating higher fees that they had been increased by the credit institution. The BGH has now put a stop to this practice.
BGH ruled: Customers are inappropriately disadvantaged
In its judgment, the Federal Court of Justice (BGH AZ.: XI ZR 26/20) states that bank customers are unreasonably disadvantaged by certain clauses in the general terms and conditions. The main concern here was that the bank could adapt any contractual amendment agreement with a bogus consent of the customer without any restrictions in terms of content or object.
The court declares that in the case of far-reaching changes to the contract, the bank cannot rely on the fact that the customer’s failure to object is equivalent to consent. Rather, in the event of far-reaching changes, the bank must conclude an amendment contract with the explicit consent of the customer.
“For such far-reaching changes affecting the fundamentals of the legal relationships between the parties, which can be equivalent to the conclusion of a new contract, an amendment contract that satisfies the requirements of Section 305 (2), Section 311 (1), and Sections 145 ff. BGB necessary.”
Also for Changes in fees is according to the Federal Court of Justice Amendment contract necessary. Because according to previous practice, the bank could suddenly demand significantly more money for its services without the explicit consent of the customer. This devalues the position of the bank customer. According to the current judgment, this is no longer possible.
Are you getting back your wrongly paid account fees?
In the specific case, the court only checked the changes to the terms and conditions and the fee increases at Postbank. Nevertheless, the judgment should also apply to customers of other credit institutions. Since, according to the court, the fee increase was inadmissible due to the customer’s silence, the costs for the bank account were wrongly calculated. As a result, you can claim back the account fees. we have with Lawyer Christian Solmecke, partner of the Cologne media law firm WILDEBEUGER SOLMECKE, discussed the topic in detail and asked the following questions:
Mr. Solmecke, can bank customers reclaim the fees charged by their bank if they have not expressly consented to them and for how long is this possible?
Christian Solmecke: In my opinion, almost all fee increases are ineffective at least after January 1, 2018 and can be reclaimed accordingly. The right to reimbursement of previous amounts is unfortunately statute-barred. However, customers must explicitly claim their right to a refund of the fees. No concession can be expected from the banks here. These will now first wait for the full reasons for the judgment and block claims for so long. Thanks to the statute of limitations, customers still have time. If fees are not reimbursed, you can also seek legal advice or contact the arbitration boards of the banks.
Is there a possible right to reimbursement only for account fees or also for other fee increases for banking services such as custody account costs to which the customer has not actively consented?
Solmecke: Yes. Finally, the BGH decided on a general clause to change the terms and conditions. If your own bank has increased the fees for a securities account or credit card by means of bogus consent, then these changes are also ineffective and can be reclaimed.
How should bank customers behave who have just received a letter from their bank announcing a fee increase that they do not have to actively agree to?
Christian Solmecke: If the bank increases the fees, customers do not have to accept the changes. If you do not react, the bank cannot calculate the fees. But: Customers have to be prepared for the fact that this will not be the last letter. The banks will first wait for the full reasons for the verdict. As soon as these are available, it can be assumed that the banks will send new price increases. But then with the request that one should actively agree to the increase. Without consent, some banks will threaten to close the relevant account. In many cases this is also possible. Exceptions apply to the basic account and to some savings banks in certain federal states due to the local savings bank laws.
Does the current BGH ruling only apply to private customers or also to business customers?
Christian Solmecke: The current BGH ruling affects all private customers in any case. It is still unclear whether this also applies to business customers. In principle, the regulations also apply to business customers. The Federal Court of Justice (BGH), however, refers in its judgment to a judgment of the European Court of Justice (ECJ). This in turn related to the EU directive on unfair terms in consumer contracts. This fact suggests that the BGH ruling will probably not apply to business accounts. However, you should first wait for the full reasons for the judgment in order to be able to answer this question seriously.
What do you need to do to get the account fees back from your bank?
It is very likely that the banks will not repay the overcharged fees of their own accord. Every consumer must contact his bank himself and make a claim. You can use various sample letters for this. It remains to be seen how the bank will react to these demands. You will find a selection of sample letters below:
Free: You can download a prepared sample letter from the lawyers on the website of the law firm Gansel. All you have to do is fill in your personal details. In order to receive the sample letter, you must leave your e-mail address, your first and last name. Practical: the lawyers will contact you after three weeks and ask whether your bank has already paid the money.
Free: Stiftung Warentest offers two sample letters for reclaiming account fees. Depending on whether you can precisely quantify the amount wrongly paid or whether you do not know the exact amount of the account fees, you can use the appropriate letter. The bank is obliged to send you a statement of charges.
Chargeable: The law firm WILDE BEUGER SOLMECKE also offers two sample letters and instructions for reclaiming account fees according to the current judgment of the Federal Court of Justice for 9.99 euros. First of all, all important data is queried via a convenient input mask on the Internet. After payment you will receive the finished letter for shipping.
What else can you do?
Even if your bank reimburses you for the account fees, you will likely not end up with a free checking account. The banks will probably send a new cover letter as soon as possible and ask for your consent. If you do not agree, it is possible that the contract with you will be terminated. You can avoid the hassle by opting for a free current account using our current account comparison.
Biallo-Tipp: You can invest the unexpected repayment from your bank, including the top interest rate, in an ETF and thus try out whether you can increase your credit balance with this investment. Are you already familiar with the BGH ruling on the fees for payment via PayPal or Klarna?
–
