D.he first banks in Germany are apparently ready to repay their customers after the spectacular ruling by the Federal Court of Justice (BGH) in April on fee increases for checking accounts. On Tuesday, Postbank and Deutsche Bank announced on request that they would now “examine each specific reimbursement claim individually with regard to the legality and reimburse the fees if necessary”.
In its ruling, the Federal Court of Justice declared certain clauses in the general terms and conditions of banks with which many institutions had in the past to enforce fee increases to be ineffective by interpreting customer silence as consent. The grounds of the judgment, which the FAZ has, corroborated the assessment of the ineffectiveness.
Postbank and Deutsche Bank emphasized, however, that even if an amendment to the contract should have been ineffective in individual cases, customers could not demand a flat-rate return of all fees paid.
Examination of repayments in each individual case
With its judgment of April 27, 2021, the Federal Court of Justice decided on occasions for contractual changes that may occur in a continuing obligation with a bank, according to the statements of the two banks. This also includes regulations on fees for the services provided.
The BGH had specifically decided that the mere silence of customers could not mean consent to a contract change. However, customers may have agreed to a contract change offered to them in the past in another way. Customers could have explicitly accepted offers to change contracts from the bank, for example by explicitly choosing a fee model, or through their behavior, for example actively using new performance features such as the contactless payment function on the Girocard. Because a long-term business relationship is “naturally not static, but also defined by the behavior of the contracting parties”.
Even if an amendment to the contract should have been ineffective in individual cases, customers cannot claim back all fees paid, the banks emphasized. Rather, such a claim can only extend to fees that have been overpaid since the last effective contract adjustment or since the original contract was concluded. “This is a question of the individual case”, write the banks: “Of course, Deutsche Bank / Postbank will examine every specific reimbursement claim individually with regard to its legality and reimburse the fees if necessary.”
Procedure based on the proposal of the banking association
The ING bank also announced that it will now examine the reimbursement of charges relating to the current account on a case-by-case basis. “Whether and in what amount and for what period of time fees can be reclaimed cannot be answered across the board,” said a spokesman. Rather, this is a question of the respective contract history between the customer and the bank: “We will look at the individual customer relationships and take the necessary time to carefully examine them.”