Banks must reimburse unlawful fees

Consumers are empowered

BGH: Banks have to pay back unlawful fees

Change account fees – without the active consent of customers? Banks have been prohibited from doing this since 2021. How far do the repayment claims go?

In the dispute over the repayment of bank fees that were levied due to an invalid contractual clause, the Federal Court of Justice (BGH) has strengthened the rights of bank and savings bank customers. The Senate in Karlsruhe ruled that the fact that a customer paid the wrongly charged fees without objection for more than three years does not mean that the savings bank is allowed to keep the money. A so-called three-year solution from the Federal Court of Justice applied to energy supply contracts does not apply here.

In this specific case, the defendant savings bank began charging fees for a customer's checking account at the beginning of 2018 without the active consent of a customer. The account holder lodged an objection in July 2021 – and then went to court to demand a repayment of the fees charged from 2018 to 2021.

The Sparkasse had based the fee collection on a fictional consent clause in the General Terms and Conditions (GTC). Accordingly, changes to the contractual conditions are considered accepted if customers do not object within a certain period of time.

In 2021, the BGH declared such clauses – which were found in the general terms and conditions of many banks and savings banks – to be ineffective because they were too far-reaching and customers were unreasonably disadvantaged. Many consumers were then able to demand refunds of fees.

Nevertheless, the plaintiff savings bank customer was initially unsuccessful in the lower courts. The Ingolstadt regional court admitted that the savings bank could not base the charging of fees on the ineffective fictitious consent clause. However, due to the three-year solution, the customer is not entitled to a refund of the fees because he only complained about their charging after more than three years.

The 11th Civil Senate of the BGH, which is responsible for banking law, now saw things differently. The judges overturned the regional court ruling and also ruled on the matter themselves. They awarded the plaintiff a repayment of the full amount of 192 euros. They also obliged the savings bank to compensate the plaintiff for any further future damage that he might incur as a result of the collection of bank fees that were not agreed upon after 2021.

In its ruling, the BGH also referred to the existing statutory statute of limitations. In view of these regulations and the existing possibility of terminating contracts, savings banks and banks would not be unreasonably burdened by the Senate's jurisprudence.

Despite the consumer-friendly BGH ruling in 2021, only a few consumers have made reimbursement claims against their own bank in recent years. This is shown by a representative survey conducted by the comparison portal Verivox in the spring. According to this, only eleven percent of all customers asked for money back from their bank – although for at least 40 percent their accounts had become more expensive in the three years before the verdict. The credit institutions got off lightly, said Verivox managing director Oliver Maier.