In its ruling of 27 April 2021, the German Federal Court of Justice (“BGH”) declared fee and contract amendment clauses with a fictitious consent to be invalid (cf. press release). The ruling has not been published yet. However, it is already foreseeable that the ruling will have far-reaching consequences.
I. Fee and contract amendment clauses – what is at stake?
The BGH (ruling of 27 April 2021 – XI ZR 26/20) has declared fee and contract amendment clauses in general terms and conditions to be invalid, which qualify the customer’s silence as consent to fee and contract amendments.
With regard to the contract amendment clause, the BGH objected to the fact that by means of a fictitious consent of the customer, not only specific details of the contractual relations, but any contractual amendment could be brought about without any restriction in terms of content or subject matter.
With regard to the fee amendment clause, the BGH objected to the fact that the bank can increase fees by means of a fictitious consent without any restrictions being imposed. In this way, the bank could significantly shift the ratio of its services to the consideration in its favor.
The lower court (OLG Cologne, ruling of 19 December 2019, 12 U 87/18) still considered the contested clauses to be effective. The lower court had argued that the general terms and conditions used by the bank did not deviate from the statutory provisions of the German Civil Code (BGB), as the contested clauses merely reproduced the provision of section 675g BGB mutatis mutandis. Therefore, the clauses would not be subject to judicial review of their content.
II. Fee and contract amendment clauses – who is affected?
The clauses declared invalid essentially correspond to the contract clauses used by private banks, cooperative banks and savings banks. In this respect, the entire banking industry is affected. Furthermore, many companies outside the banking industry have also taken their cue from the banks’ amendment clauses and included corresponding clauses in their contracts.
It is still unclear whether the fee and contract amendment clauses are only invalid in the B2C business or also in the B2B business. An analysis of the arguments put forward by the BGH will hopefully provide clarity here. The judgment and the reasons for it have not yet been published.
III. Charge and contract change clauses – refund of price increases?
Now that the contract variation clause is invalid, it is possible that price increases agreed with customers using the fictitious consent can be demanded from the customers. Here it will depend on the circumstances of the individual case. One is only on the safe side if the repayment claims are already time-barred. Against this background, a first bank has already put a planned price increase on hold.
IV. Remuneration and contract amendment clauses – need for action
Companies that use fee and contract amendment clauses in their form contracts or general terms and conditions should revise them. Otherwise, especially in the B2C business, there is a risk of warnings from consumer protection associations.
Further information on this topic: Fee and contract amendment clauses in bank GTCs invalid | Consequences for the payment and banking practice
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