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Sparkasse branch (symbol image)
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Hundreds of thousands of savers have signed premium savings contracts with savings banks and a few other banks - and received far too little interest.
But most of them do not even know: Who thinks that their bank could calculate interest rates incorrectly?
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Financial tip
Hermann-Josef Tenhagen
, born in 1963, is editor-in-chief of “Finanztip”.
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Tenhagen was previously editor-in-chief of the “Finanztest” magazine for 15 years.
After studying politics and economics, he began his journalistic career at the »daily newspaper«.
Today he is an honorary member of the supervisory board of the cooperative.
On SPIEGEL.de, Tenhagen writes weekly about how to handle your own money properly.
Now the financial supervisory authority Bafin wants to force the savings banks to at least admit this deed to their customers with a »general order«.
To inform you that the interest rate models used were not legal.
And to make them a new offer for a fair interest calculation.
In other words: pay you back the withheld interest.
It is about premium savings contracts with variable interest from the years 1990 to 2010.
If necessary, the Bafin would also give the banks a little more time until the Federal Court of Justice presumably sets the basics for a fair calculation model this year.
But there should be a second look in any case.
Banks should comment on the planned decision by Friday.
Landlord interest
General decrees, i.e. rules of conduct for banks and insurance companies, are published by the financial supervisory authority two dozen a year.
But the currently planned one has it all.
The authority wrote to 231 savings banks and banks because, in their opinion, the institutes
"unauthorizedly intervened in the contractual structure by using a self-imposed clause"
- and changed the savings contracts with their customers
in the manner of a
landlord.
But that is exactly what the Federal Court of Justice forbade them in several judgments between 2004 and 2010
(Az. XI ZR 361/01, Az. XI ZR 140/03, Az. XI ZR 52/08, Az. XI ZR 197/09)
.
After the applause in front of the Federal Court of Justice more than ten years ago, the savings banks and banks had dutifully developed new interest clauses for their new contracts.
"The interest claims in existing business"
, complains the Bafin, but were
"not retroactively calculated from the start of the contract
."
You could also say that the banks concerned withheld interest from several hundred thousand customers for a decade and a half and danced on the nose of the Federal Court of Justice and the Bafin.
The problem is that the savings banks and banks "
ignored the jurisprudence
" and "deliberately continued to use the ineffective clauses without commenting," according to the Bafin.
The banks counter that they did everything right.
The German Savings Banks and Giro Association (DSGV) did not want to answer my written questions in writing this week.
The consumer center Saxony, which now represents thousands of customers in test cases, speaks of 4000 euros missing interest per person on average - in individual cases up to 25,000 euros.
The whole thing attracted attention because the savings banks began to terminate the old premium savings contracts some time ago.
Because even though they hadn't adjusted interest rates properly, it was still too expensive for them to keep their old commitments.
The customers were angry - where can you get decent interest now - and had the contracts checked.
Result of the lawyers: There was usually nothing to be shaken about the termination, but the interest was calculated incorrectly.
On the tip of the nose of the authorities
As a saver, you don't have to put up with something like that, of course.
But not every customer sees through that the savings banks have withheld interest.
On the contrary: Most customers actually expect savings banks and banks to calculate interest correctly and in accordance with the law.
However, authorities shouldn't let themselves be danced around on the nose.
And supervisory authorities certainly not.
Otherwise you can lock the shop right away.
The Bafin simply watched the goings-on for a long time.
But not anymore.
In order to justify the planned order, the authority writes that it has had numerous submissions from consumers since 2018 and that the banks themselves have confirmed the procedure - which Bafin considers illegal - in numerous statements on Bafin’s questions.
In practice, three-month interest rates were often used as a benchmark for long-term savings contracts.
For such short-term savings contracts, the interest rates are naturally much lower.
In any case, at first glance, the procedure also looks like a blatant violation of the idea of the longstanding judgments of the Federal Court of Justice.
For long-term savings contracts, long-term model interest rates, for example from the Bundesbank, would have to be used as a benchmark.
Financially just as bad or even worse in many cases: only five of the around two hundred credit institutions contacted by Bafin have taken into account the requirements of the Federal Court of Justice and adjusted the interest rates relative to the reference interest rate during the term of the contracts, explains the Bafin.
What does that mean?
A fictitious example: At the beginning of the savings contract, the comparative interest rate used by the Sparkasse was four percent and the interest rate for the customer was three percent.
Ten years later, the comparable interest rate has fallen by three percentage points to one percent.
The savings banks then also lower the interest rate for the customer by three percentage points to zero.
But it is not allowed to do so, ruled the BGH.
If the reference interest rate falls to a quarter of the base rate, then the customer rate must also be a quarter of the base rate.
A quarter of three percent, that's 0.75 percent.
The saver, who has meanwhile saved 20,000 euros, receives 150 euros in interest that year instead of zero.
Such differences sometimes amount to thousands of euros in long-term savings contracts.
You can find out what is important when calculating interest here.
If the Bafin had caught a single bank, probably nothing would have happened.
The supervisory authority observed, however, that the offer "long-term premium savings contract with interest rate adjustment clause" was "to be regarded as customary in the industry" for years.
The Bafin incidentally states that even today none of the savings banks and banks "actually uses an interest rate adjustment clause that is effective in all respects".
Cheekiness doesn't always win
The savings banks acted according to the motto, cheek wins.
A first attempt by Bafin to find a solution with the savings bank association DSGV failed in 2019, according to the authority.
The subsequent, already unusual, public request to the banks to finally inform their customers about the wrong interest calculation and to make better offers was also ignored by the institutes.
Finally, at a round table with the two federal ministries for justice and finance last November, reports the Bafin, the banking associations were still claiming that the credit institutions were behaving "in accordance with the law".
Before that, however, the consumer center of Saxony had already prevailed against the Sparkasse Leipzig before the Dresden Higher Regional Court.
Result: the customers have to be paid additional interest (Az. 5 MK 1/19).
Or maybe it wasn't cheek at all, but calculation.
The end of 2020 was already another year.
And with that, legal claims of a few tens of thousands of customers for back payments are barred again.
It can't go any better for the banks.
The Sparkasse Leipzig, the Sparkasse Zwickau, but also the Erzgebirgssparkasse and the Harzsparkasse had already terminated tens of thousands of customers in 2017.
Such claims usually expire after three years.
Since 2015, more than one hundred savings banks have canceled several hundred thousand premium savings contracts.
And hoped to have got rid of the interest claims right away.
So if you have such a premium savings contract, then you shouldn't let the savings banks get away with this hustle and bustle.
Here's what you can do now:
Ask your savings bank
to recalculate the interest you are entitled to according to the clear guidelines of the Federal Court of Justice.
The official specifications can be found on pages 2 and 3 of the draft general ruling.
Set a deadline for this.
Also, encourage neighbors and friends
who may have similar contracts to do the same.
Federal Finance Minister Olaf Scholz (SPD) is on your side.
His ministry is writing to me this week that it welcomes the way Bafin is supporting consumers here.
Have the offer recalculated
.
According to the consumer advice center in Saxony, which examined thousands of contracts, an average of 4,000 euros in arrears.
Often the savings bank makes an offer to pay part of the interest, without recognizing a legal obligation.
If the offer is good, you can take it.
If you do not agree with the offer,
ask your local consumer advice center
whether they intend to sue your savings bank or bank as part of a model declaratory action.
You could join such a lawsuit free of charge and without risk.
If your consumer advice center cannot or does not want to sue,
speak to
your
legal protection insurance company
and find a lawyer who is well versed in this matter.
Based on the judgments so far, the chances are good that your insurance company will make a commitment.
If you do not want to sue yourself, contact the
arbitration board of the savings banks at the German Savings Banks and Giro Association (DSGV)
.
The savings banks in Baden-Württemberg have their own arbitration board in Stuttgart.
Customers of Volksbanks and Raiffeisenbanks should contact the customer complaints office at the Federal Association of German Volksbanks and Raiffeisenbanks (BVR).
You will probably be put off by the fact that the Federal Court of Justice will judge pending test cases against some Saxon savings banks in the course of 2021.
But with your complaint, your claim can no longer expire.
If you live in Saxony-Anhalt or Thuringia, in Baden-Württemberg or Rhineland-Palatinate,
speak to your mayor now
.
When in doubt, they sit on the board of directors of their savings bank and should have been involved as a supervisory body in questions of such fundamental importance.
The City Council wrote to me this week that this was "operational business", nothing for the mayor.
But you don't have to see it the same way in the case of legal violations.
After all, you have two choices this year.
Oh yes, maybe the general decree will come quickly now, your Sparkasse will dispense with the limitation objection and will recalculate itself fairly.
Then it is good if you already have your contract at hand and know your rights.
I wish you success!
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