The parties are disputing the validity of pre-formulated contractual terms and conditions of a German commercial bank. Among other things, they oblige savers to pay so-called custody or credit balance fees if they exceed a certain allowance. In a ruling announced today, the Higher Regional Court of Frankfurt am Main (OLG) decided that these clauses are effective. As main price agreements, they are not subject to the content control of general terms and conditions and are also neither intransparent nor surprising.
The defendant commercial bank challenges, inter alia, its order to cease using general terms and conditions clauses obliging the payment of a fee for the safekeeping of savings deposits. The defendant bank concludes contracts with consumers for the safekeeping of savings deposits, among other things. New customers were required to pay a custody fee in the period from mid-2020 to mid-2022 starting at an allowance of initially €250,000, and existing customers were required to pay a custody fee after a corresponding agreement. When concluding a business relationship with new customers, the defendant used a form containing a "framework agreement for the safekeeping of deposits" in item 15. The list of prices and services referred to there provided for a custody fee of 0.5% p.a. for newly established customer numbers above the exemption amount. The new customers had to declare their consent to the custody of the deposits with a separate signature. With regard to existing customers, the defendant bank presented a pre-formulated agreement for discussion from the beginning of 2021, which also included the obligation to pay a custody fee of 0.5% for euro deposits, including savings deposits.
The Regional Court had ordered the defendant, among other things, to stop using the clauses on the charging of custody and appraisal fees. The defendant's appeal against this was successful before the OLG. The OLG justified its decision by stating that the clauses had been validly agreed. It could be left open whether the clauses in question were also general terms and conditions for existing customers. In any case, the clauses constituted so-called main price agreements for both new and existing customer transactions. Such clauses, which directly determine the price for the main service, are not subject to content control under the General Terms and Conditions Act.
The clauses directly regulated the price of the main contractual service in savings contracts. The OLG emphasized that "safekeeping and restitution of the same amount of money (is the) unilateral main contractual obligation of the bank under the savings agreement", following the case law of the BGH to this effect (most recently judgment of July 25, 2023, file no. XI ZR 221/22). Since savings contracts only unilaterally obligate to safekeeping and restitution, the bank can thus also determine a price for it, which is not subject to content control according to the regulations on general terms and conditions. Contrary to the view of the Regional Court, there was no loan agreement, as the saver was not obliged to pay in a specific amount of money.
In addition, the Senate points out that the clauses would not be ineffective vis-à-vis new and existing customers even in the event of a content review. They do not unreasonably disadvantage the saver, since the savings agreement as an irregular custody agreement only unilaterally obligates the bank to provide custody and restitution. In contrast to the lender, the saver is not subject to an obligation to provide the bank with funds by paying interest. Consequently, the clauses were also not incompatible with essential basic ideas of the statutory regulation of the loan agreement. The clauses at issue were also neither non-transparent nor surprising. Every new customer must clearly and unambiguously agree to the agreement on the safekeeping of deposits by signing the agreement. The agreement with existing customers obviously serves precisely the purpose of agreeing a deposit fee.
The decision is not final. Due to the fundamental importance of the case, the Senate has allowed an appeal to the Federal Court of Justice to be lodged within one month.
Frankfurt am Main Higher Regional Court, judgment dated October 5, 2023, Ref. 3 U 286/22
(preceded by Frankfurt am Main Regional Court, judgment of November 18, 2022, Ref. 2-25 O 228/21)
Source: Press release of the OLG Frankfurt am Main No. 60/2023 of 05.10.2023
