The XI Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for banking law, has ruled in response to a consumer protection association's action against two savings banks that the following clause, which is modelled on No. 17 para. 2 sentence 1 of the General Terms and Conditions of Savings Banks, may not be used in banking transactions with private customers (consumers) because it unreasonably disadvantages them and is therefore invalid under Section 307 of the German Civil Code (BGB):
No. 17 - Fees, costs and expenses
(...)
(2) Determination and display of charges
Unless otherwise agreed, the fees in the private and business customer area are determined and changed by the Sparkasse taking into account the market situation (e.g. change in the general interest rate level) and the expenditure according to reasonable discretion verifiable in accordance with § 315 of the German Civil Code. (...)
The courts of first instance upheld the action for injunction in each case. The XI Civil Senate dismissed the appeals of the defendant savings banks.
The XI Civil Senate explained the reasons for this:
According to the most anti-customer interpretation required in association action proceedings, the clause also entitles the savings banks to charge fees for services for which they cannot claim remuneration because they have to provide them on the basis of their own statutory or ancillary contractual obligations or they provide them exclusively in their own interest (e.g. processing of account attachments, cash payments at the counter and work in connection with the payment of taxes). Clauses which - like the one challenged here - allow a credit institution to charge fees for activities which it is obliged to perform by law and in an ancillary contract or which it performs in its own interest, do not withstand the review of content pursuant to section 307 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) according to the established case law of the Federal Supreme Court (Bundesgerichtshof - BGH), because they are not compatible with essential basic ideas of the statutory provision from which they deviate and unreasonably disadvantage customers contrary to the requirements of good faith.
The unilateral right to change prices contained in the clause also unreasonably disadvantages savings bank customers because the conditions entitling the savings banks to make a change are unclear and the clause does not contain a clear obligation for the savings banks to reduce charges if costs fall. It does not contain a commitment to the extent of the cost increase in the case of a price increase and does not contain an obligation for the savings banks to reduce charges in the case of falling costs. This enables the savings banks to make price changes not only to pass on their own costs, but to increase their profit and thus to change the originally agreed contractual equivalence ratio in their favour.
This also applies to the savings banks' unilateral right to adjust the interest rate contained in the clause. It is true that the Federal Supreme Court, in its ruling of 6 March 1986 (BGHZ 97, 212 et seq.), did not consider an indeterminate interest rate adjustment clause of a bank in the credit business to be invalid, but merely attributed a specific content to it by way of interpretation. However, the court has already expressed doubts in the past as to whether this case law can still be adhered to. It now abandons it in accordance with the case law of the lower courts that has been handed down in the meantime and the prevailing opinion in the literature. The general principles for price adjustment clauses must also be observed for interest rate adjustment clauses. According to these, an interest rate adjustment clause must observe the equivalence principle and may not unilaterally favour the bank. According to these principles, the challenged right to adjust interest rates does not stand up to content control any more than the right to change prices.
Judgments of the Federal Supreme Court of 21 April 2009 - XI ZR 55/08 and XI ZR 78/08
Lower courts:
OLG Nuremberg - Judgment of 29 January 2008 - 3 U 1887/07
Nuremberg-Fürth Regional Court - Judgment of 28 August 2007 - 7 O 2244/07
and
OLG Brandenburg - Judgment of 30 January 2008 - 7 U 71/07
Frankfurt (Oder) Regional Court - Judgment of 7 March 2007 - 13 O 370/06
Source: BGH press release of 21 April 2009
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
