In the large courtroom of the Federal Court of Justice this Wednesday there is a lot of money for banks – and for savers. The eleventh civil senate negotiates premium savings contracts such as those concluded between 1990 and 2010. It was once a conservative but safe form of investment. For the banks and savings banks, these contracts with comparatively high interest rates are very expensive in the age of low interest rates, which is why they have depressed interest rates across the board. From the point of view of the consumer center (VZ) Sachsen, however, this was illegal. It has therefore brought six model declaratory actions; The first against the Sparkasse Leipzig, supported by around 1,300 plaintiffs, is now being negotiated. In other federal states, too, consumer advocates have initiated legal proceedings. “That affects the entire industry,” says Michael Hummel from VZ Sachsen.
The sums are likely to be huge. Nobody knows the exact size because the banks do not disclose the figures. However, several consumer advice centers have now checked thousands of contracts and estimate the average damage caused by too low interest payments at 4000 euros – per saver. The number of credit institutions affected is also likely to be far greater than initially assumed. VZ Sachsen had listed more than 160 banks and savings banks on the Internet. But when the Federal Financial Supervisory Authority Bafin obliged banks and savings banks in June to inform premium savers about ineffective adjustment clauses, more than 1,000 credit institutions are said to have appealed against them.
Legally, the BGH is dealing with interest rate clauses contained in savings contracts with names such as “Bonusplan”, “VorsorgePlus” or, as in the specific case, “S-Premium Savings Flexible”. In addition to a staggered premium that is paid on the respective savings deposit, the contracts contain variable interest rates. At the Sparkasse Leipzig, the clause read succinctly: “The savings investment is variable, currently with …% interest.” So the Sparkasse left a cunning void that it wanted to fill at its own discretion in accordance with the market situation.
How is the actual interest rate for savers calculated?
The BGH declared such clauses unlawful at an early stage, first in 2004 and then in many other judgments. For the Higher Regional Court (OLG) Dresden, which had to decide in the first instance on the model declaratory action, the matter was therefore clear: “The unspecified authority of a credit institution to pay the saver an interest rate announced by a notice does not show that required minimum degree of calculability “, it says in its judgment of April 2020. It is hard to imagine that the BGH will now see it differently.
On the other hand, the question is more complicated: How is the interest rate calculated for savers if the savings contract leaves them open? The courts must fill such gaps in the contract by means of “supplementary contract interpretation”. So you have to define the parameters for calculations. It starts with the question of the correct reference interest rate, i.e. the calculation variable on which the contractual interest rate is based. VZ Sachsen has proposed an interest rate from the Deutsche Bundesbank for longer-term investments and has thus followed earlier requirements of the BGH. The Dresden Higher Regional Court, however, had concerns as to whether one could really apply a single interest rate like a template to all contracts. It is also conceivable that individual contracts have an “individual impact” because of a separate agreement.
An individual impact? If the BGH were to follow this, it would be a major setback for savers. Then, even after a success in the Karlsruhe pilot process, the customers would have to fight out the level of their claims in detail. “If the BGH says that all of this has to be clarified individually, then we can bury the model declaratory action,” fears Michael Hummel.
Further lawsuits may be necessary to enforce the claims
This would be further evidence of the deficiencies of the model declaratory action, which are often complained about, which bundles lawsuits, but leaves those affected alone in enforcing the claims – because such a declaratory judgment only clarifies fundamental questions, but does not provide an enforcement order. If the savings banks were to block comparisons with savers, further lawsuits might be necessary. They could be bundled again, for example through a legal service provider – who would of course claim part of the payments for itself.
And the calculation of interest harbors further uncertainties. For example, how big the difference between the reference and contractual interest must be. The savings banks favor an absolute value here. If, for example, the gap had been four percentage points at the beginning, then, from their point of view, the number would remain four. What this means in the low interest rate phase is easy to calculate: The savings interest would go to zero, in the worst case even below. The BGH has so far not considered such a rigid margin safeguard to be in line with interests, so that it will more likely amount to a relative interest rate differential, which becomes smaller the more the reference interest rate falls. But here, too, every tenth will count. Financial swings in one direction or the other can also raise the seemingly trivial question of whether the interest payments are calculated exactly along the constantly changing interest curve – or whether a moving average is used as a basis.
The question of the statute of limitations remains, after all, it is often a question of very old contracts. The OLG Dresden had assumed that the three-year limitation period only begins at the end of the contract – and not already with the annual interest credit. This is a very consumer-friendly variant, and with a view to the earlier BGH case law, Michael Hummel is confident that this will be confirmed in Karlsruhe. This would be the most expensive solution for banks and savings banks – claims could possibly go back decades.