BGH: "Unilateral" price adjustments (not only) by banks invalid
Just a few years ago, it was standard practice for banks and savings banks to offer their customers current accounts without account management fees. However, as key interest rates continued to fall, the economic pressure on banks increased immensely. As a result, many institutions suddenly started charging fees for account management.
From the banks' point of view, this was made possible by a clause in the GTCs according to which consumers were deemed to have given their consent if they did not expressly disagree to the implementation of those fees. Other banks had initially offered low-cost accounts, but then raised the fees piecemeal on the same basis.
The Federal Court of Justice has now put a stop to this practice (ruling dated April 27, 2021, Ref.: XI ZR 26/20). This "unilateral" change in account management fees is therefore invalid - with effect for the past. According to the judges, the background to this is that the account management fees in particular are not merely subordinate secondary obligations under the contract. Rather, they are the consumer's main obligation and thus his consideration for the account management itself. However, the criticized general terms and conditions clauses would give the banks the possibility to shift the proportion between performance and consideration more or less indefinitely without express consent. This is not compatible with the general principles of German contract law, at least in the relationship between consumers and entrepreneurs. According to the established case law of the Federal Court of Justice (BGH), only narrowly defined price adjustment clauses are generally permissible (see BGH ruling dated November 15, 2007, ref.: III ZR 247/06).
A large number of banks use similarly worded GTCs. In practice, it is also widespread for banks to merely inform their customers about future increases in account management fees and not to demand explicit consent. The vast majority of consumers have therefore never expressly agreed to a change in the GTC.
Bank customers whose bank has raised account management fees in recent years should now consider and have checked whether they can claim back the fees paid. Provided that appropriate GTCs were used, it is possible to reclaim corresponding fee increases back to 2018. Fees paid earlier may be subject to the statute of limitations, depending on the individual case.
Has your bank also raised account management fees without your express consent? Would you like to reclaim these or other fees? We will be happy to give you advice! Please contact us by phone at +49 351 44753 0, by e-mail at central@schaffrathlaw.de or visit our website www.schaffrathlaw.de.
By your side
Schaffrath & Metzmacher Team
5 July, 2021
