The XI Civil Senate of the Federal Court of Justice, responsible, among other things, for banking law, has confirmed the invalidity of a fee clause for the re-issuance of account statements to consumers.
The plaintiff consumer protection association seeks an injunction against the defendant bank to cease using the following clause in its price and service list vis-à-vis consumers:
"Re-issuance of account statements Per statement EUR 15.00".
The Regional Court dismissed the action, while the appellate court granted it upon the plaintiff's appeal. The XI Civil Senate rejected the appeal on points of law (Revision) filed by the defendant bank, which had been permitted by the appellate court.
The clause, which is subject to content review according to § 307 para. 3 sentence 1 of the German Civil Code (BGB), is invalid according to § 307 para. 1 sentence 1, para. 2 no. 1 BGB. It does not comply with the requirements of § 675d para. 3 sentence 2 BGB, according to which the fee for the re-issuance of account statements, particularly in the present case under § 675d para. 3 sentence 1 no. 1 BGB, must be based on the bank's actual costs.
The defendant bank submitted that for the re-issuance of account statements, which in over 80% of cases concerned transactions up to six months old, costs of (only) €10.24 were incurred due to the internal design of electronic data management. In the remaining cases, where duplicate statements were requested for transactions older than six months, significantly higher costs were incurred.
Thus, even when calculating the actual costs, it introduced and demonstrated a differentiation between customers requesting re-issuance before the expiry of the six-month period and those requesting renewed information after the expiry of the six-month period, proving that a distinction based on these user groups is easily possible for it. Furthermore, without going into the details of the plaintiff consumer protection association's objections to the cost calculation, it demonstrated that the vast majority of customers incur significantly lower costs than estimated by the bank. Accordingly, it must determine the fee separately for each group in the sense of § 675d para. 3 sentence 2 BGB. The flat-rate passing on of costs of €15 per account statement to all customers violates § 675d para. 3 sentence 2 BGB.
Furthermore, the XI Civil Senate ruled that the clause, which is indivisible in terms of its content and linguistic formulation, cannot be partially upheld. This would contradict the prohibition of validity-preserving reduction, recognized in the Federal Court of Justice's consistent jurisprudence.
Judgment of the BGH of December 17, 2013 – XI ZR 66/13
Lower Courts:
Higher Regional Court of Frankfurt am Main – Judgment of January 23, 2013 – 17 U 54/12 (published: ZIP 2013, 452)
Regional Court of Frankfurt am Main – Judgment of April 2, 2012 – 2-19 O 409/11
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
