April 5, 2024, 4:16 pm | Read time: 4 minutes
In a recent case, a court in Berlin ruled that the increase in fees at Berliner Sparkasse was unlawful. But what does this mean for the 1,200 affected individuals who were part of the consumer protection lawsuit? And can other affected parties also have a right to reimbursement? TECHBOOK explains the situation.
“Silence is not consent.” This applies in various areas of German law and was once again applied here. Specifically, it concerns a lawsuit filed by the Federation of German Consumer Organizations (vzbv) against Berliner Sparkasse. The consumer protection group accused the financial institution of unilaterally increasing checking account fees. The explicit consent of the customers was not obtained. The Berlin Court of Appeal has now agreed with this. But what are the consequences of the ruling?
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Court Rules Sparkasse Fee Increase Unlawful
The vzbv’s lawsuit specifically refers to fee increases at Berliner Sparkasse in 2016. In the public announcement it states: “Berliner Sparkasse unilaterally increased or introduced fees for consumers with checking accounts on December 1, 2016. This particularly affected the transition from Das Girokonto and Das Girokonto Comfort to Giro Digital, Giro Pauschal, or Giro Individual.”
As a result of these changes in 2016, the monthly fee increased by 1 or 3 euros. In other instances, the Sparkasse reduced fees by 3 euros, “but introduced separate fees for all account transactions (…).” Additionally, Berliner Sparkasse introduced an annual fee of 8.50 euros for the so-called SparkassenCard in 2016–but only within the GiroDigital and GiroIndividual tariffs.
All these changes, which meant an increase in fees, were not explicitly agreed to by Sparkasse customers. The Sparkasse, however, referred to its general terms and conditions (AGB) in its counterargument.
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Consumer Protection Points to Federal Court of Justice
However, the consumer protection group disagreed. In a similar lawsuit before the Federal Court of Justice (BGH), the court ruled in favor of the consumers. The previous case involved Postbank; however, other financial institutions operate similarly. Until then, if customers did not actively oppose a change, it was considered consent.
The BGH largely dismissed this in its 2021 ruling. As the consumer protection group emphasizes, institutions must obtain explicit customer consent, especially for price increases. This did not happen in the case of Berliner Sparkasse. The Berlin Court of Appeal has now agreed with this.
This decision was expected in this form. For example, the Trier Regional Court had already decided, referring to the BGH ruling in a similar case, that Sparkassen and banks must refund the amounts. The same applies to the Hanover Regional Court.
However, the court assumes a different deadline than the vzbv. In its model declaratory action, which around 1,200 affected individuals joined, the vzbv seeks a retroactive deadline to the year of the changes, 2016. The court, however, believes that all claims before 2018 are time-barred. Upon request, the vzbv confirmed that a revision is currently being considered. A spokesperson told TECHBOOK: “We will likely appeal. Whether this will only concern the question of when the statute of limitations begins or other issues as well, we still need to determine.”
A spokesperson for the Sparkasse also noted upon request that the court had partially agreed with the financial institution’s position. “The Berlin Court of Appeal also positioned itself in favor of Berliner Sparkasse. Beyond that, we do not comment on ongoing proceedings,” the spokesperson told TECHBOOK.
Is There a Right to Reimbursement?
As of now, the ruling is not legally binding. Therefore, corresponding claims cannot yet be asserted. However, it is the declared goal of consumer protection that those affected who were part of the model lawsuit receive a full refund. A similar lawsuit is also ongoing against Sparkasse KölnBonn. However, that proceeding is currently on hold, as they wanted to wait for the outcome in Berlin, “since very similar legal questions are at the core of both cases,” the vzbv told TECHBOOK.
Those who want to determine if they have a claim for reimbursement should first check their bank’s terms and conditions, according to consumer protection. If it states that you agree to changes by not objecting within two months, you should check which changes were made in this way. If it involves a price increase, determine how much you have paid since then. You can then assert your reimbursement claims with your bank.
The consumer protection agency points out that some banks have already adjusted their terms and conditions accordingly and that there have been isolated cases of account termination after a corresponding claim was made.