Federal Court of Justice affirms that claims for information on bank fees may be assigned to debt collection companies

The Federal Court of Justice (FCJ) (case no. XI ZR 111/23) has ruled that claims for information on banking fees agreed on and paid for in the past can in principle be assigned and that this applies also to cases where the claims are assigned to a legal services provider whose business model is to use the information to quantify alleged claims for reimbursement of overpaid fees. Although the decision confirms that claims for information may be assigned, it should not be regarded as supporting the legal services providers’ business model.

I. Background

On 27 April 2021, the FCJ ruled (case no. XI ZR 26/20) that specifying in T&C that changes to the agreed fee structure become valid if the customer does not object within a certain period of time is not permitted. The judgment prompted various legal services providers to make low-threshold offers to bank customers to reclaim fees introduced or increased on the basis of the invalid T&C clause.

However, the legal services providers did not request the information required to substantiate and quantify the reimbursement claims from their customers. Rather, the assignment by the customers also included claims for information, for example arising from section 10 of the German Payment Account Act (Zahlungskontengesetz, ZKG) and section 675d(1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with Article 248 sections 4 and 5 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB). The idea behind the assignment is to use the information as a basis for assessing which fees were validly agreed upon and paid by the customer. If the bank refused to provide information or make a payment, the legal services providers brought step-by-step actions in accordance with section 254 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), asserting claims for the information (step one) and the reimbursement of the amounts calculated on the basis of the information (step two).

The courts have cast doubt on the assignability of the claims for information and on the viability of the business model as such (see overview in Lühmann/Taufmann/Fürbringer, NJW 2023, 3121). The FCJ judgment in this case concerns the assignability of the claims and the scope of the prohibition of assignments under section 399 of the German Civil Code. According to this provision, a claim cannot be assigned if the performance cannot be carried out for a creditor other than the original creditor without changing its nature of the performance.

II. FCJ judgment

1. No prohibition of assignment under section 399 of the German Civil Code

The FCJ does not share the opinion of Bonn Regional Court and rejects the prohibition of assignment in the present case because the nature of the bank’s obligations does not change as a result of the assignment.

The decisive factor for the FCJ is that the claims for information are not highly personal and relate exclusively to charges under the payment services framework agreement and the payment account, without allowing any conclusions to be drawn about personal data (paras. 25 et seq. of the judgment).

The FCJ also rejected the argument that a bank has a special interest in disclosing fee-related information only to the customer in cases where the customer wishes the information to be provided to a third party as evidenced by the assignment in the case at hand (paras. 27 et seq. of the judgment). The fact that the claims for information partly presuppose a consumer status is irrelevant to the FCJ because the continued existence of the claim once it has arisen does not depend on the continued existence of the claimant’s status as a consumer (paras. 29 et seq. of the judgment).

In the FCJ’s opinion, this result is also covered by the purpose of the right to information. The purpose of the right is not only to inform the customer and to enable them to compare different banks, but also to enable the customer to verify the existence of claims against their bank (paras. 31 et seq. of the judgment). Finally, the FCJ held that data protection considerations do not preclude the validity of the assignment if and because the customer does not wish to maintain confidentiality as evidenced by the assignment.

2. Judgment has limited practical significance

a) No statements on further grounds for the invalidity of assignments

The FCJ leaves the examination of further grounds for the invalidity of the assignments to the court of appeal. As a consequence, the FCJ judgment cannot be interpreted as approval of the service providers’ business model. In this regard, the FCJ expressly refers to the grounds for invalidity of T&C in section 307(1)(1) of the German Civil Code (unreasonable disadvantage) and section 138(1) of German Civil Code (usury) (para. 37 of the judgment).

b) Accessory nature of information claims must be observed

According to the FCJ, the relevant claims for information in this case cannot be assigned on a standalone basis, i.e. not without the main claim, the preparation and calculation of which the claims for information are intended to serve (para. 37 of the judgment). This can be understood as a reference to decisions that have rejected the assignment of reimbursement claims, holding that in the event of an invalid fee increase the customer cannot request payment but only correction of the account balance, which is a claim that cannot be assigned to a third party (in this case the legal services provider) (see Munich Local Court, judgment of 1 June 2022, case no. 171 C 21037/21; Marburg Local Court, 25 October 2022, case no. 9 C 279/22 (82)).

III. Practical consequences of the judgment

Although the FCJ has affirmed that section 399 of the German Civil Code does not prevent the assignment of claims for information about banking fees agreed on and paid for in the past, it has pointed to several legal problems for the legal services providers’ business model when asserting claims for the payment of allegedly overpaid banking fees. The decisive factor here is likely to be that the FCJ has not only rejected, as it has done previously, the isolated assignability of the claim arising from the account holder contract under section 666 of the German Civil Code, but also the isolated assignability of claims under section 10 of the German Payment Account Act and section 675d(1) of the German Civil Code in conjunction with Article 248 section 5 of the Introductory Act to the German Civil Code. This means that step-by-step actions by legal services providers will not succeed because customers cannot assign any claims for payment to the legal services provider, nor any claims for information due to their accessory nature.