Landmark decision on the repayment of account fees by a savings bank
In a recent proceeding, the Federal Court of Justice (BGH) clarified significant issues regarding the reclaiming of unlawfully charged account fees by credit institutions in its judgment of November 20, 2024 (Case No. XI ZR 139/23). The case arose against the backdrop of years-long disputes as to whether, and to what extent, banks and savings banks may retrospectively increase fees for current accounts if customers have not explicitly agreed to the changes.
Background of the proceedings
The plaintiff, a consumer protection organization, had sued a savings bank for repayment of account fees that had been imposed based on unilateral fee adjustments. The savings bank merely referred to the General Terms and Conditions (GTC) when communicating these changes, but no explicit consent was obtained from the account holders.
The BGH therefore had to clarify central questions regarding the interpretation of §§ 305 ff. BGB (regulations on general terms and conditions), as well as their relationship to active consent for fee changes. The discussion particularly centered on the extent to which banks and savings banks may still presume ‘deemed consent,’ i.e., the customer’s consent unless the customer explicitly objects.
Legal framework and reasoning of the decision
The BGH confirmed the legal position already established in its landmark judgment from 2021 (Case No. XI ZR 26/20). According to this, a unilateral change in account management fees based solely on information and acquiescence by way of legal fiction does not constitute a valid legal basis for charging increased fees. For amendments to pricing clauses in banking contracts to be effective, the explicit consent of the customer is required.
Consequently, all payments made as a result of such unilateral adjustments lack a legal basis and may generally be reclaimed. Moreover, the court addressed the issue that claims for reimbursement may also exist for fees paid further in the past, subject to the regular civil statutory limitation periods.
Significance for customers and institutions
Impact on banks and savings banks
The current judgment puts pressure on the banking industry to revise the communication processes regarding contractual terms with customers and to make existing contracts subject to review. In particular, automated adjustments to changed market conditions that rely solely on GTC provisions now stand, according to the supreme court’s case law, in contradiction to the intention of the legislator and the requirements of the BGH.
Claims for reimbursement and limitation periods
With this decision, customers now have the option to reclaim unlawfully charged account management fees based on § 812 para. 1 sentence 1 alt. 1 BGB (claim for restitution due to unjust enrichment). However, the applicable limitation period is decisive, typically three years from knowledge of the non-debt. Whether older claims can be enforced depends on the individual case.
The BGH judgment concretized certain key issues relating to the transfer of claims, such as to whom refund requests can be directed and how possible limitation defenses should be evaluated. Nevertheless, there remains scope for interpretive detail questions, such as those concerning forfeiture or the offsetting of other benefits.
Significance for contract design
For companies, institutional investors, and high-net-worth individuals who maintain long-term business relationships with financial institutions, the judgment is of far-reaching relevance. The contractual mechanisms for adjusting fees and handling consent requirements now need to be structured even more carefully. Credit institutions are required to adapt their standard contracts in line with the new requirements in order to prevent legal uncertainties and refund claims.
Conclusion and further developments
The BGH’s decision marks another milestone in the development of case law regarding the permissibility of fee adjustments in banking contracts. Although the fundamental guidelines have been set by the decision, there remains considerable need for clarification in practical application—especially in the enforcement and defense of reimbursement and compensation claims, such as between banks and business clients, or in more complex contractual arrangements.
For those affected and interested, it is advisable to review their individual contractual relationships in light of this decision and to assert any claims within the applicable time limits. Given the complexity of the matter and the resulting legal issues, the Rechtsanwalt at MTR Legal are happy to provide support and advice. Further information on this topic can be obtained at any time.
