No fictitious approval of banking terms and conditions

Suddenly the account is more expensive: Until now, banks could apply their changed general terms and conditions even if the customer did not expressly consent. After a BGH ruling, this is no longer possible.

From Kerstin Anabah and Gigi Deppe, ARD legal editors The Federal Association of Consumer Organizations sued Postbank. He considers certain clauses with which the bank can change its general terms and conditions to be ineffective. The background: Many customers do not even notice when their bank changes the fine print. You only feel that, for example, fees are suddenly being debited for a free account or that other services of the financial institution are becoming more expensive. Although they have received an announcement from the bank that the contract should be changed, very few delve into the small print. Most of the customer’s contracts say: We will send you an announcement two months in advance. And if you do not object, then that counts as consent. Then our contract is changed.

Clauses not transparent enough

However, the Federal Association for Consumer Centers does not consider such clauses to be transparent enough. They did not reveal the reason for the change in the general terms and conditions, nor did they indicate the limits. The association therefore demands that the clauses may no longer be used. “What bothers us about the clauses is that they are simply far too intransparent for the customer,” explains David Bode from the federal association. “When the contract is concluded, he cannot foresee where the journey will go for him.” Ultimately, these clauses could also be misused to turn them into a completely different contract, says Bode: “I can turn a free account into a paid account, I can force certain software on the customer to use online banking.”

Decision of the lower courts

However, the Cologne Regional Court initially dismissed the consumer advocate’s complaint. The federal association was also unsuccessful at the Cologne Higher Regional Court. In the opinion of the judges of the OLG, the clauses correspond to the legal requirements. The relevant European legal regulations provide for the possibility of such tacit consent by customers. Therefore, banks may also agree on these in general terms and conditions. Because of its fundamental importance, however, the judges allowed the appeal to the Federal Court of Justice. In addition, there was a legal hint from Luxembourg. The European Court of Justice, the highest court in the EU, decided a case from Austria last November and gave the general direction: The small print of the banks can certainly be checked by the courts to see whether it disadvantages customers. That was the reason for the Federal Court of Justice, Germany’s highest civil court, to take a closer look at whether it is okay for the bank to change a contract without the express consent of the customer.

Judgment of the Federal Court of Justice

The BGH today announced a judgment in favor of consumers. In the opinion of the federal judges, such clauses are generally ineffective. The banks could introduce extensive changes to contracts, for example also in savings contracts, without the customers having to give their express consent. That would contradict the basic idea of ​​the law. Such clauses would unduly disadvantage consumers. As a result of the ruling, numerous credit institutions will now have to change their clauses. The lawyer of the defendant financial institution, Postbank, had pointed out that it was a mass business for the financial institutions and raised the question of how it should be implemented in practice if every individual customer had to give his consent to changed conditions. The Federal Court of Justice pointed out, however, that the previous rule gave the banks too much power. They could completely change contracts in this way: “For example, the bank could recruit customers with free current accounts or free custody accounts and, after they have concluded a contract with it, introduce account management fees or custody fees using the disputed clause,” said the presiding judge Jürgen Ellenberger . In the future, most bank customers will certainly get more mail from their financial institution. However, it has not yet been determined whether many customers will really say no to a contract change when asked. Because the bank may then try to terminate the contract.