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Ineffective fee increases for checking accounts: Decision by the Berlin Higher Regional Court
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Changes to fees in framework agreements for payment services—especially for checking accounts—have been the subject of court disputes for years. In a recent case, the Berlin Higher Regional Court (Kammergericht Berlin, KG) ruled on the effectiveness of fee adjustments that are said to have been made by Berliner Sparkasse. The decisive issue was whether a unilateral adjustment of account maintenance fees and other prices without the customers’ explicit consent can withstand legal scrutiny.
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The following presentation is based on the published report at: https://urteile.news/KG-Berlin_26-MK-121_Berliner-Sparkasse-hat-Gebuehren-zu-Unrecht-angehoben~N33871 (access date: 08/04/2024).
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Starting point: Fee adjustments by means of deemed consent
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Mechanism of the price change
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At issue was an approach in which changes to the fee structure were announced to customers and consent to them was presumed unless an objection was raised (so-called deemed consent). Such clause concepts have previously been the subject of highest-court case law, in particular on the question of whether silence in mass transactions involving payment accounts may be treated as consent.
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Subject matter of the proceedings
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According to the reporting, the proceedings concerned fee increases by Berliner Sparkasse that are said to have been introduced in this way. The focus was therefore not on a single booking entry or an individual case, but on the legal permissibility of the change mechanism used in the underlying contractual terms and conditions.
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Key statements of the KG Berlin decision
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Ineffectiveness of the fee changes implemented
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According to the said report, the Berlin Higher Regional Court took the view that the fee increases in question had not been validly agreed. The decisive criterion was that a contract amendment generally requires consent, and silence—even after prior notice—does not replace that consent where the contractual design shifts this unilaterally to the detriment of customers.
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Significance of the BGH case law as the benchmark
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As reported, the decision falls within the line derived from the case law of the Federal Court of Justice (Bundesgerichtshof, BGH) on deemed consent for changes to prices and performance obligations in ongoing contractual relationships. Under that case law, clauses intended to bring about a unilateral adjustment of essential contractual components through mere silence are regularly ineffective.
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Classification: Legal consequences for contractual relationships and fee models
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Contractual basis and transparency requirements
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The decision illustrates the high requirements for the contractual legitimation of fee changes in banking business. Changes to prices and conditions must be based on a valid agreement. Clauses that are structurally designed to replace or deem consent do not meet these requirements under the court assessment presented.
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Status of the dispute and procedural note
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Insofar as this is—as reported—court proceedings, the legal assessment must always be made on the basis of the specific content of the judgment and its procedural status.
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Outlook for those affected and market participants
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The KG Berlin decision underscores that fee adjustments in the banking sector require a robust contractual basis and that the limits of permissible change mechanisms are narrowly drawn. For companies, investors, and high-net-worth private individuals, this can be relevant in particular where accounts, payment transactions, or treasury structures are based on ongoing framework agreements and changes in conditions have economic effects.
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Legal issues relating to fee adjustments, consent mechanisms, and the contractual consequences resulting from them can be classified within the scope of a professional review. A relevant point of contact at MTR Legal can be found at: Legal advice in banking law.
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