The XI Civil Senate of the Federal Court of Justice, which is responsible for banking law, among other things, has confirmed the invalidity of a fee clause for the re-issue of account statements vis-à-vis consumers.
The plaintiff, a consumer protection association, is suing the defendant bank for injunctive relief against the use of the following clause in its list of prices and services vis-à-vis consumers:
"Re-issue of account statements Per statement EUR 15.00".
The Regional Court dismissed the action, the Court of Appeal upheld it on the plaintiff's appeal. The XI Civil Senate dismissed the defendant bank's appeal, which was allowed by the Court of Appeal.
The clause, which is subject to content review pursuant to section 307 subsection 3 sentence 1 BGB, is invalid pursuant to section 307 subsection 1 sentence 1, subsection 2 no. 1 BGB. It does not meet the requirements of section 675d, paragraph 3, sentence 2 of the German Civil Code (BGB), according to which the fee for the subsequent preparation of account statements must be based on the actual costs of the bank, among other things, in the case of section 675d, paragraph 3, sentence 1, no. 1 of the German Civil Code (BGB) given here.
The defendant bank argued that for the subsequent production of account statements, which in more than 80% of the cases concerned transactions dating back up to six months, costs of (only) €10.24 were incurred due to the internal design of the electronic data storage. In the remaining cases, in which duplicates were requested for transactions dating back more than six months, costs were significantly higher.
In doing so, it has itself introduced a differentiation in the assessment of the actual costs between customers who request a re-production before the expiry of the six-month period and those who request renewed information after the expiry of the six-month period, and has demonstrated that it is readily able to distinguish between these groups of users. It has further shown, without it being relevant in detail to the objections of the plaintiff consumer protection association against the calculation of costs, that the vast majority of customers incur significantly lower costs than it has estimated. Accordingly, it must determine the charge for each group separately within the meaning of section 675d(3) sentence 2 BGB. The blanket passing on of costs of €15 per account statement to all customers violates section 675d (3) sentence 2 BGB.
The XI Civil Senate also ruled that the clause, which was indivisible in terms of content and language, could not be partially upheld. This would contradict the prohibition of a reduction that preserves the validity of the clause, which is recognised in the established case law of the Federal Court of Justice.
Judgment of the Federal Supreme Court of 17 December 2013 - XI ZR 66/13
Lower courts:
OLG Frankfurt am Main - Judgment of 23 January 2013 - 17 U 54/12 (published: ZIP 2013, 452)
Frankfurt am Main Regional Court - Judgment of 2 April 2012 - 2-19 O 409/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
