Banking sector in turmoil: The nullity of the mechanism for modifying the GTC – Quo vadis? | Hogan Lovells

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The ruling applies to all forms of banking transactions, to individual business relationships (e.g. savings transactions, securities transactions, payment transactions, MasterCard, VisaCard), payment service providers and others. sectors in which fee increases are implemented by means of fictitious consent.

The storm that this decision has caused is fueled by more and more new decisions favorable to consumers. On the Internet

  • consumer advocates urge consumers to professionally review terms and conditions and latest changes and recover bank charges;
  • companies advertise the purchase of repayment receivables or the assertion against a percentage share;
  • the Federation of German Consumer Organizations asks consumers to inform them via an anonymized online portal about how the bank or savings bank reacted to the BGH judgment so that it can assess and decide “if, how and against whom further legal action will be taken”.

What has the BGH decided?

Until now, court decisions and literature have mainly assumed that Article 675g (2) sentence 1 of the German Civil Code (BGB), which provides that framework contracts for payment services can be amended by fictitiously assuming the consent of the customer, excludes the application of a revision of the content under the laws on the general conditions.

The BGH noted that Articles 307 et seq. of the German Civil Code also apply. It found that the disputed clauses departed from the fundamental principle concerning the conclusion of contractual amendments (Articles 305 (2), 311 (1), 145 et seq. Of the German Civil Code). The fictitious assumption that silence constitutes acceptance of an amendment to the contract unreasonably disadvantages the customer (Article 307 (1) sentence 1, (2) No. 1 German Civil Code), as this would lead to a unilateral power to make changes without restrictions as to content and shift the equivalence relationship between performance and consideration to the detriment of the client.

Applicability – scope and limits

The BGH expressly declares the clauses amendment to the contract null and void “in relations with consumers“. It is not clear from the judgment whether legal commercial transactions must also be covered. What is opposed to this is that the BGH refers to the Deniz Bank decision of 11 November 2020 (C-287 / 19) in which the European Court of Justice based the primacy of the control of the GTC over the law on payment services on the directive on unfair terms in contracts concluded with consumers (directive 93/13 / EEC). , this cannot be applied to entrepreneurs.Moreover, in legal transactions with entrepreneurs, one applies when assessing the GTC; they can also be incorporated into the contract tacitly or by conclusive behavior (BGH , judgment of 12 February 1992 – VIII ZR 84/91).

What costs are covered?

Reimbursement rights for unjust enrichment (plus interest) may be invoked for all charges levied or increased on the basis of the disputed clauses, for example account maintenance charges, transfer charges, charges card, custody and ordering fees, fees for non-compliance with the minimum wage documents, etc. They can be claimed not only by current clients, but also by former clients, which will likely revive contacts that have not been broken off amicably.

When does the prescription defense apply?

A particularly controversial issue is the question of which refund claims can be countered by the limitation period defense; and this is precisely one of the points where recent case law of the European Court of Justice may become relevant. There is a consensus that claims are time-barred after three years (Article 195 of the German Civil Code). However, it is not known when the limitation period begins to run.

There are two alternatives: either the limitation period runs at the end of the year in which the fee was collected, or at the end of the year in which the decision of the BGH was issued, that is, i.e. end of 2021.

In the first case, reimbursement requests for payments made before January 1, 2018 would be time-barred. The limitation period for requests for reimbursement in respect of fees introduced or increased in 2018 would have started to run at the end of 2018, so that such a request would become time-barred on December 31, 2021.

In the second case, reimbursement requests could be invoked until the end of 2024. There would be a restriction only insofar as only payments from the last 10 years can be claimed (Article 199 (4) of the Code. German civilian). Since this maximum period begins on the exact day concerned and must be calculated in accordance with article 187 et seq. of the German Civil Code, a tax collected on September 8, 2011, for example, would become prescribed on September 8, 2021. Refund requests would therefore also be possible for amounts paid before January 1, 2018.

The deciding factor is whether the legal situation was not clear until the BGH decision and therefore made it unreasonable for potential claimants to take legal action. However, the fact that no decision of the highest judicial authorities considered that fictitious consent was admissible precludes this. This is also underlined by the BGH (no “explicit endorsement”). At the latest following the decision of Deniz Bank of the European Court of Justice, it was clear that the revision of the clauses under the law of the GTC was allowed. The underlying objectives of the limitation period, namely public peace and legal certainty, require that high standards be set for the existence of an unclear legal situation.

Recently, judgments of the European Court of Justice of 10 June 2021 (case ref .: C-609/19 and C-776/19 to C-782/19) were cited to support the opposite point of view. According to these cases, reimbursement for unfair terms should not be prescribed before consumers even realize that they might be entitled to a reimbursement. It is questionable whether the judgment of the European Court of Justice, which dealt with a particular case, can be attributed to such relevance for the interpretation of the German limitation rules. However, the discussion shows the permanent threat posed by the decision of the BGH, in particular for the banking world.

How to assert reimbursement requests?

For most consumers, it will not be economically attractive to claim costs in the range of two or three digits by initiating individual legal action. In addition to the class actions known to a large number of plaintiffs, representative actions could become important in the future. The Representative Actions Directive (EU) 2020/1828, published in the Official Journal on December 4, 2020, must be transposed by the Member States by December 25, 2022 and applied by June 25, 2023 at the latest. to seize an injunction action, it gives consumers a legal right to enforcement (“remedies such as compensation, repair, replacement, price reduction, termination of the contract or reimbursement of the price paid“) and therefore a form of collective action for performance.

Transposition – accept past and next steps

In practice, reactions to the BGH’s decision are mixed: the introductions or planned fee increases are suspended retroactively, the corresponding clauses are deleted from the GTC without replacement, customers are invited to give their consent (for example in the bank online), etc.

How can changes to the T & Cs and fee increases be agreed in the future?

In the business of new clients, the use of disputed clauses should be avoided by removing them from the T & Cs, including on the home page.

With regard to the necessary reformulation of the GTC, it should be noted that the BGH stressed that formulations of amending clauses which limit and clarify the initial provision are allowed. Therefore, fictitious solutions that are worded in such a way as to ensure the necessary balance and transparency are always permitted.

If customer consent is required, electronic solutions are an option. To make such consent attractive to clients, it may be considered to link it to benefits. Separate offers of various services or the development of new products are also possible. Depending on the situation, consent may also be based on future use of the services.

In the event of refusal of consent, the (ordinary) termination of the contractual relationship can be considered in individual cases, but this requires a valid agreement on a corresponding right of termination.

How to manage reimbursement requests?

BGH does not demand any refunds without a corresponding request from the customer.

If such requests are made, it must first be determined whether the relevant underlying amendment clause does not meet the BGH’s efficiency requirements.

In addition, in addition to the issue of the limitation period, it should be checked whether the increase or modification of the costs has become part of the contract affected by the (implied) consent of the customer. On the one hand, this can usually be the case if, for example, customers have changed their account type or have opened their account for free, for example as students, and therefore it was already clear when they opened their account that some fees would have to be paid later. On the other hand, it is necessary to verify in each individual case whether or not consent was given during individual conversations or correspondence, for example via an offer to change account.

Depending on the situation, it may also be permissible to require the waiver of reimbursement claims in return for the granting of benefits.

The consequences of the BGH judgment on the invalidity of the mechanism for modifying the GTCS therefore strongly depend on the correct interpretation and application of the scope, but also of the limits.


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