Berliner Sparkasse succeeds with Noerr in model declaratory proceedings

Noerr advises Berliner Sparkasse on questions concerning General Terms and Conditions in banking contracts as well as on strategic questions regarding the defense against class actions. On 27 March 2024, the Berlin Court of Appeal (Kammergericht) ruled on a model declaratory action brought by the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – vzbv) against Berliner Sparkasse, a bank residing in Berlin. Berliner Sparkasse had adjusted its fees for services in connection with consumer banking accounts in 2016 based on a mechanism common in the banking sector and beyond. While the Court of Appeal considered fee adjustments based on the GTC to be invalid, it confirmed in particular that the limitation period for any consumer claims had not been postponed, even taking into account European law. However, the judgment also leaves key questions unanswered, including whether consumers could have claims for reimbursement of fees at all.

Background

In its judgment of 27 April 2021 (XI ZR 26/20), the Federal Court of Justice (Bundesgerichtshof) ruled that a fee adjustment clause in consumer GTC is invalid if the clause stipulates that the customer's consent to proposed fee adjustments is deemed to have been given under certain conditions. Based on the judgment of the Federal Court of Justice the vzbv brought a model declaratory action against Berliner Sparkasse in December 2021. The vzbv argues in particular that fee adjustments based on the invalid clause are invalid as well, giving customers a claim for reimbursement of the fees concerned.

The proceedings before the Berlin Court of Appeal concern a total of nine declaratory applications which are meant to decide questions relevant for subsequent individual consumers claims. However, the dispute essentially revolves around two legal questions:

The first question is whether the fee adjustments in 2016 are to be considered valid by way of supplementary interpretation of the contract despite the invalidity of the fee adjustment clause, because the customer has paid the increased fees over a longer period of time without objection (so-called “three-year solution”). This question arises at least in cases where the costs calculated at the time of the conclusion of the contract have fundamentally changed to the disadvantage of the bank over time.

The second question is whether the limitation period under German law was postponed for reasons of European law, at least until the Federal Court of Justice decided that the fee adjustment clause was invalid. This question has arisen because German law considers knowledge of the facts giving rise to a claim (as opposed to the legal assessment of those facts) to be sufficient for the start of the limitation period.

"Three-year solution" not applicable to banking contracts

The Court of Appeal considered the fee adjustments to be invalid, providing only a very brief reasoning for its opinion that the “Three-year solution” developed in the context of energy supply contracts cannot be applied to banking contracts. On the one hand, the court emphasised that the invalid clause – unlike clauses in energy supply contracts – did not affect the price itself, but merely stipulated the conditions when the customer's tacit consent to the offer of a fee adjustment was given. The fact that the Federal Court of Justice expressly qualified a practically identical clause also as a fee adjustment clause without any of the Court of Appeal’s reservations was not addressed in the judgment.

On the other hand, the Court of Appeal argued that the interests of banks and energy suppliers were not comparable because the costs of a giro account were not subject to similarly significant external fluctuations. The Court of Appeal did not mention, however, that Berliner Sparkasse provided an expert report on precisely this point, showing that the development of interest rates over time seriously increased the net costs of a private giro account. The judgment thus leaves open the actual legal question of how to deal with situations where the costs have fundamentally changed to the disadvantage of the user of an invalid fee adjustment clause and whether it is fair and reasonable to treat fee adjustments to be invalid even in cases where the parties intended to provide for a solution that allowed the bank to react higher cost by adjusting fees.

Start of the knowledge-based limitation period not postponed

In view of the potentially broad impact, the second key question of the proceedings is whether the limitation period was postponed at least until the Federal Court of Justice decided on the invalidity of the fee adjustment clause in April 2021. The claimant argued that this was the case because the Court of Justice of the European Union infers from the Council Directive 93/13/EEC on unfair terms in consumer contracts that the start of the limitation period must be dependent on consumers' knowledge of the law (see also Noerr News of 26 January 2024). The Court of Appeal rejected the claimant’s view. Instead, it followed the argument of Berliner Sparkasse that EU law cannot override German limitation law as the wording of the relevant provision, i.e. Section 199 (1) No. 2 of the German Civil Code, and the legislative history, clearly show that the legislator links the start of the limitation period to the knowledge of the facts and not to knowledge of the law. The Court of Appeal has thus significantly strengthened the interest in legal peace and legal certainty which can be considered to be a statement relevant beyond the case and the banking sector.

Counterclaim inadmissible in model declaratory actions – key questions remain unanswered

There is a dispute among scholars whether consumers who have received services based on an invalid fee must still compensate the bank for the services based on principles of unjust enrichment. According to the claimant’s statement in the oral hearing, it deliberately refrained from having this question clarified by filing an application of its own. Therefore, Berliner Sparkasse filed a counterclaim and requested the Court of Appeal to decide on these questions. However, the Court of Appeal did not do so because it inferred from the legislative history that counterclaims are inadmissible in model declaratory proceedings. Whether the principles of unjust enrichment bar reimbursement claims of consumers is hence another question that remains open.

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Noerr is a pioneer in defending against collective and mass actions. With a specialised team of over 50 lawyers in our Class & Mass Action Defence practice group, Noerr regularly advises clients on defending against capital investor model proceedings, model declaratory actions and representative actions as well as on defending against claims through structured litigation vehicles and in mass actions.