Enlarge image
ATMs in Düsseldorf: Services can cost money - but there must be transparency
Photo:
Michael Gstettenbauer / IMAGO
Almost a year ago, the Federal Court of Justice ruled that banks should not casually increase their account fees and should not take the silence of their customers as approval (AZ. XI ZR 26/20).
Conversely, it follows from the judgment that the fee increases that tens of millions of customers have received in recent years were ineffective.
The money was not allowed to be collected.
Customers have since had a right to get it back.
And in order for banks to be able to enforce their higher fees in accordance with the law in the future, they have to conclude new contracts with their customers.
Twelve months later it is clear: such new contracts with (new) fees were concluded, but there was often no money back.
Firstly, because customers have not reclaimed illegal fees.
But they should have actively done so.
And on the other hand, because some banks didn't bother with the case law of the Federal Court of Justice and cheekily claimed that the judgment did not apply to them.
At times, the sophisticated banking lawyers even argued that customers had consented to the increase by continuing to use their account despite an illegal fee increase in the past.
For example, the HypoVereinsbank and the Volksbank Ludwigsburg argue in some of the letters that customers passed on to Finanztip.
Even if the financial regulator Bafin wrote to me this week that they "do not accept" such ignorance.
What money can you get back?
Actually, the caravan got off to a good start.
After the judgment in 2021, hundreds of thousands of customers set out to recover illegally collected bank fees from the banks.
200,000 users alone called up our sample letter at Finanztip.
And over time, we've collected the experiences of customers at more than 420 banks and savings banks with a short guide to getting money back.
Two-thirds of these customers got money back.
Our readers also report procrastination, unfair treatment, sleight of hand and the simple refusal of their credit institutions to comply with the verdict.
Legal service providers like Justify or Gansel/Spreefels can tell of thousands of cases in which they represent clients to get the money back.
Sometimes there is also a lawsuit against the respective bank.
Justify Managing Director Philipp Volkmer wrote to Finanztip this week that in all of the 70 lawsuits conducted so far, the required fees and legal fees were only paid in full by the banks after legal steps – but then without waiting for a verdict.
Legal niceties
And now the fencing continues with a legally fine blade.
The fee increases were illegal, that is indisputable.
However, many banks claim that only increases over the past three years should be considered illegal.
They refer to the so-called three-year solution, which, however, goes back to case law on energy contracts.
Accordingly, only fees that you increased after 2018 would have to be repaid.
A customer-unfriendly and ultimately untenable position.
Even some bank ombudsmen believe that all increases in recent years are illegal.
Only the obligation to pay, but not the reason for payment, is time-barred.
For customers, this makes a big difference:
An example: The customer has had an account with the bank since 2012.
The account originally cost three euros a month, since 2015 five euros and finally seven euros since 2018.
In the calculation version of the customer-unfriendly banks, only the increase in 2018 counts. For the three years from 2018 to 2021, the bank would therefore have to pay back 36 times two euros: 72 euros.
Actually, however, 4 euros would have to be paid 36 times, because the account originally only cost three euros – and that makes 144 euros.
So twice as much!
The Federation of German Consumer Organizations (VZBV) has now launched two model declaratory actions against Berliner Sparkasse and Sparkasse Köln Bonn, which have already been joined by more than a thousand customers.
The register is still open, customers of these institutes can still join the lawsuit.
Bank strategy: pressure
Another consequence of the judgment: If the bank charges more fees today than when the account contract was concluded a decade ago, it must conclude a new contract.
The vast majority of banks have therefore asked their customers to conclude such a contract with them.
Otherwise, as was sometimes threatened, customers would have to reckon with being thrown out and losing their account details at the bank.
more on the subject
Uncertain geopolitical situation: How to make your money crisis-proof A column by Hermann-Josef Tenhagen
The banks and savings banks, on the other hand, were far less energetic when it came to repaying illegally collected fees.
Contrary to what was required by the regulator, many Volksbanks and savings banks did not inform their customers that money had to be returned.
The attitude of the banks has also recently annoyed the supervisory authorities considerably.
In October 2021, Bafin once again expressly pointed out that “customers are entitled to assert claims for reimbursement.
Exercising this right can therefore [...] not result in termination [...].« And then in bold type: The wrongly charged fees »must be reimbursed immediately«.
The ignorant attitude of a number of banks was not entirely unexpected, but it points to a more fundamental problem.
In Germany, banks can interpret the rulings of the highest courts as they see fit without this having any noticeable consequences for them.
Or to put it a little more harshly: Only customers have to comply with the applicable law in everyday life, banks not necessarily: Some pay a little, the second pay more and the third don't pay at all - as a result of the same court decision.
remedy ex officio
Of course, this cannot go on like this.
Customers must get their rights.
On the one hand, supervision must ensure this.
The Bafin informs me that they have already "held talks with credit institutions and associations".
And they go “decisively against institutes that fool customers that they are not affected by the BGH judgment”.
The banks would be asked "to communicate clearly and unequivocally to their customers that they are also affected by the BGH judgment".
The easiest way for the Bafin would be to check whether the bank in question has started a work process to quickly repay illegally charged fees.
As early as autumn, the supervisory authority had stipulated that banks would have to “provide comprehensive, clear and understandable information”.
more on the subject
Custody fees: Why banks demand negative interest - and courts rightly overturn this A column by Hermann-Josef Tenhagen
Banks without such a process are quite obviously unwilling to implement the rulings of the highest courts, their executive boards act neither fairly nor in accordance with the law and are not acceptable in such an office - in technical jargon not "fit and proper" for the job.
The Bafin, which is responsible for ensuring that German banks and savings banks comply with the law, has enough starting points.
How to remedy it yourself
But we customers cannot rest on our laurels either.
Anyone who always checks the change at the checkout in the supermarket, but now simply lets their bank get away with hundreds of euros in illegally collected fees, is making themselves a bit ridiculous.
And he hasn't understood that maybe his bank belongs to the group of highwaymen instead of to the group of law-abiding service providers, who have to be bravely opposed.
Banks report privately that only a few percent of their customers are actually claiming back illegal fees.
Overall, they definitely expected billions in costs from the fee freeze and fee reimbursement as a result of the judgement.
The banks are pursuing a calculation that is understandable for business reasons.
Every customer considers whether to start a lengthy dispute with the bank for a fee of 50 or 100 euros.
This is exactly what banks expect.
A study by Allensbach for the legal protection insurer Roland in 2021 showed that customers in this country usually only seek a lawyer for damage of 1000 euros or more.
However, if the legal situation is so clear and the banks are actually only relying on you to be shy, you can usually achieve your goal without going to court.
Claim back at least the fees for the past three years yourself.
This is essentially legally undisputed.
The bank even has to provide you with all the necessary information, writes the Bafin.
Here is the sample letter.
If you don't feel like such correspondence: Legal service providers will do the job for you, demand the money back and, if necessary, sue.
You don't have to spend any more hours on this.
However, the service providers keep part of the refunded money.
If the bank bricks, you as a customer should consider whether a bank that cuts off your rights and takes money from you is still the right bank for you.
After all, we have about 1500 banks and savings banks in the country.
The EU has also made it very easy to switch bank accounts in Germany.
All harsh words
In the end I would like to differentiate again: Not all banks are shirking.
And of course they also provide a service, for example maintaining an account, for which they can demand payment.
If the payment is not enough for them, banks always have the option to increase such fees.
Customers can choose their bank based on the amount of these fees or on the services they provide.
And of course, customers can also agree if the bank increases the fees for their services.
We all do that all the time at the bakery or in the supermarket.
But the whole thing is based on a relationship of trust.
And if banks unilaterally terminate this relationship of trust, you should do the same.
After all, the banks are there for us - not we for the banks.
