It’s a bit like in music: the variation becomes more and more playful, more and more imaginative – but the motif always resonates. The Federal Court of Justice (BGH) has been doing something similar for decades when it comes to bank charges. Each time the clauses are different, but the goal remains the same: a bank wants to make big money with small amounts.
This Tuesday it was about the annual fee that the Bausparkasse BHW charges during the so-called savings phase. Twelve euros per year are due until the contract has finally been saved and is ready for allocation. Many other building societies handle this in a similar way, which is why the Federation of German Consumer Organizations (VZBV) has filed a lawsuit to have the matter clarified in principle. Now the BGH has decided: The clause is void, the savers may no longer be asked to pay (Az. XI ZR 551/21).
“Contrary to the requirements of good faith, home savers are being put at an unreasonable disadvantage,” said the presiding judge, Christian Grüneberg, when the verdict was announced. In addition, the fee is incompatible with “essential basic ideas of the legal regulation”. Ultimately, with the twelve-euro clause, the costs for administrative activities would be passed on to the savers, which the building society is legally obliged to provide anyway. The BGH thus confirmed a judgment of the Celle Higher Regional Court from last year. Other courts had also decided in this sense – but a clarification from the highest court was still pending.
The judges are following a judgment from 2017
The BGH is now following a judgment from 2017. Even then, the court overturned an annual account fee for a building society of almost ten euros. However, it referred to the loan phase, i.e. the time after the award of the contract. BHW therefore saw scope for a new fee that only applies to the savings phase before of the allocation – and justified this with the great effort that they had to put into this particular period. First of all, the building society had to control the entire collective assets in the service of stability, explained their lawyer Thomas Winter. And secondly, it is important to continuously evaluate the individual contract. “The performance of the building society is not limited to the notification that the allocation maturity has been reached.”
That did not convince the Supreme Court. All of these are merely “necessary advance payments” for what the savers are entitled to by contract: a low-interest loan. In addition, the presiding judge made it clear that the customers had already rewarded the building society for their efforts. Because during the savings phase, the interest on deposits is comparatively low; this is an advantage for the building society, which can benefit from the funds. In addition, building societies can charge a closing fee. Peter Wassermann, lawyer for consumer protection groups, had put it at 1.6 percent in the negotiation. In short: If the savers had to pay an annual fee on top of that, then the building societies would have them pay them a second time.
According to the consumer advocates, the verdict should have far-reaching consequences: there are 18 building societies and almost 24 million contracts nationwide. “As far as we know, many building societies charge such a fee or a similar fee in the savings phase of a building society contract,” said VZBV speaker David Bode of the SZ. He did point out that the BGH case is only about a very specific clause; what is permissible and what is not always depends on the exact wording. Nevertheless, Bode predicted that the verdict would also be of great importance for other health insurance companies and their customers. In any case, consumer advocates expect “compliance with this case law”.