As part of their main interest or fee-based services, credit institutions often also provide ancillary services for which they charge separate fees . The entitlement to the charges for both banking services is contracted, namely continuous obligations (such as checking accounts ) by a reference to the Conditions in the price list of the bank.
Fees / costs / interest
A large number of rulings by the Federal Court of Justice (BGH) deal with the type, calculation and amount of interest / fees / costs that are charged to the bank customer. In addition to the general account management fees, the BGH recognizes the charging of bank fees for special services, but shows clear limits for this. In addition, the BGH warns that banks should not unilaterally re-set prices and interest at the expense of consumers ; Changes must be traceable. In addition, in the opinion of the chief judges, it is inadmissible to charge fees for services to which the credit institutions are already obliged. Legally objectionable interest / fees / costs either violate the transparency requirement of Paragraph 1, Clause 2 of the German Civil Code or unreasonably disadvantage bank customers ( Paragraphs 1 and 2 of the German Civil Code). According to Gerd Nobbe , the BGH is guided by five basic principles to which disputes over bank fees are subordinated:
- A pricing of activities that are not a service for the customer is not permitted.
- It is inappropriate to demand a fee for contractually owed ancillary services or for the fulfillment of obligations to avoid secondary contractual claims for damages.
- No fee may be charged for the fulfillment of legal obligations.
- Against liability on the customer through no fault of his / her own . Abs. 1 and 2 BGB violate fee clauses, which as a result impose
- Clauses that exclude a pro-rata reimbursement of remuneration based on a certain period of time in the event of early termination of the contract are assessed critically.
In general, a distinction is made here between two legal systems. A fee is always inadmissible if the bank is involved in the activity
- fulfills a legal obligation or
- has a predominantly own interest in the underlying service.
Certain laws with financial implications result in credit institutions having to cooperate or perform. If they act within the scope of these legal obligations, banks may not charge any fees for these activities. Expenses incurred by credit institutions in fulfilling their statutory obligations towards the state must be borne by credit institutions themselves as part of their overheads. Charging fees for cash deposits and cash withdrawals at ATMs from and to your own account is prohibited. For cash payments and cash deposits at the bank counter , credit institutions have been able to charge cost-covering bank fees since June 2019 , because they represent a payment service according to (5) sentence 1 BGB, for which a fee may be agreed and demanded in return .
Banks must offer at least five booking processes per month free of charge. However, the bank can charge a booking item fee for withdrawals from the ATM , as they provide the machine 24/7. Also, fees for amendment and management of exemption requests can not be calculated. Likewise, it is not permitted to charge a fee for issuing a cancellation permit after a loan repayment of a property financing . Fees for processing account attachments are no longer allowed.
If credit institutions are primarily active in their own interest and not on behalf of customers, these services may not trigger any fees. Banks must therefore investigate free of charge if a transfer - even if the bank customer is at fault - has been misdirected and has not reached the recipient. Charges for the return of direct debits and checks due to insufficient funds are ineffective. However, if the customer submits a bad check to his bank and this is unsuccessfully withdrawn from another bank, the costs for the non-cashing may be passed on to him. The bank must notify customers of the non-cashing of checks and direct debits or of the non-execution of transfers and standing orders due to insufficient funds for legal or contractual reasons. Since it only fulfills its duty to mitigate damage, it may not charge a fee for this either. Typical banking services such as setting up or closing a current account must also be free of charge. According to a judgment of the Federal Court of Justice of June 7, 2011, account management fees for loan accounts are also inadmissible, since banks assign account numbers for loans granted (and thus set up accounts) so that payments can be clearly assigned. The bank may not demand a fee from the borrower for the account management that is solely in its own interest and may not specify an account management fee in its general terms and conditions. Banks may also charge no fees when a property finance the value determine a property. Apart from the existing legal obligation, credit institutions largely pursue their own interests in determining a mortgage lending value . Lending banks check all loan collateral offered to them and the consequences of ordering collateral, not in the customer's interest, but exclusively in their own interest.
Banks may for loans no processing fees require appropriate clauses in their terms and conditions are not permitted. In May 2014, the Federal Court of Justice decided in a landmark judgment on loan processing fees that “pre-formulated provisions on processing fees in loan contracts between a credit institution and a consumer are ineffective”. Processing fees for loans that are unjustifiably charged by the banks can be reclaimed retrospectively for up to ten years, whereby the knowledge-dependent limitation period begins on December 31, 2011. The Stiftung Warentest provides a sample letter for the recovery and a detailed description of the legal situation.
Costs / expenses
The regulations on reimbursement of expenses (No. 12 AGB-Banken or No. 18 AGB-Sparkassen) must correspond to the legally stipulated claim for reimbursement of expenses in established case law, those clauses that passed the costs for the activities of the credit institution on to the customer in its own interest as well as for general operating expenses, the content control according to § 307 Paragraph 1 Clause 1 and Paragraph 2 No. 1 BGB are subject. The ordering , administration or realization of loan collateral is primarily in the self-interest of a bank and not in the interest of the customer. For this reason, expenses / costs in connection with loan security must be borne by the credit institutions themselves.BGB. According to this, reimbursement of expenses may only be demanded from banks if the bank customer was allowed to consider the expenses to be necessary under the circumstances, if they were made for the purpose of carrying out the order or if they correspond to the real or presumed will of the customer. The BGH also pointed out that, according to
Form Moderate interest rate clauses as part of a savings or loan agreement , according no. 4 BGB (after agreeing to a change in power law of the clause plate is ineffective unless the agreement of the change or deviation in the interests of the user for the other party reasonable is) void . Fictitious interest calculation factors can only be accepted if the interests of the customer are taken into account in an appropriate manner - for example by specifying the effective interest rate.
Value clauses have often preoccupied case law. They do not regulate the amount of the interest, but the point in time at which the account movement for the interest calculation is included in the respective interim balance to be formed; With cash payments into the account, right of the customer against the bank arise with the payment - and not with the credit or the value date. The bank will only fully comply with its contractual obligation under the giro contract if it has also timed the transfer amount, i.e. H. corrects the value in the current account . Because only with the value date, i. H. the determination of the calendar day for which the transfer amount is included in the (interim) balance of the current account, which is decisive for the interest calculation, the amount can affect interest. An exception to this applies, however, to credits for submitted checks, which are made subject to the check cashing.
Since January 1, 2002, the transfer law in the German Civil Code (BGB) regulates the deadlines for credits for transfers, late interest and the reimbursement of unjustifiably reduced amounts according to the requirements of Art. 6, 7 and 8 of the EU Transfer Directive . Thereafter, the beneficiary's bank must credit the transfer amount to the beneficiary after receipt within the agreed period, in the absence of a deadline agreement within one banking day after the day of receipt (since 2009 BGB). The text of the law takes up the BGH case law on the value date of incoming transfers and also makes it clear that the credit, even if it is made retrospectively, must be made so that the value date of the amount received on the customer's account takes place on the date of the day, at which the amount was made available to the credit institution. The beneficiary bank can only enter into a different value agreement with companies.
If the bank allows the agreed overdraft facility for the current account to be exceeded, it takes on a higher risk of default . For the additional expenses incurred, it can demand an interest surcharge - in some cases considerable - in the form of an overdraft interest .
Special fees in connection with loan agreements and loan commitments are the early repayment penalty and the non-acceptance penalty . Regulations on a prepayment penalty to be paid in the event of early loan repayment may not be compatible both surprisingly ( BGB) and with the transparency requirement to be observed in the context of a content check ( BGB). Interest calculation clauses in the general terms and conditions of the savings banks, which allow the calculation of the fees “according to the market situation” and “at reasonable discretion”, are also void. The clause unreasonably disadvantages customers. If the borrower does not take the loan contrary to the agreement, then the lender is entitled to non-acceptance compensation.
Banks usually charge custody fees for the provision of a securities account . These are graded according to the amount and type of securities account. The collective custody is cheaper than the other types of custody. However, offers for free custody accounts are no longer uncommon , especially with direct banks . For a book-entry transfer , a bank may in Germany do not require their own fees, regardless of whether the transfer is done in the course of a depot resolution or only parts inventories are transferred. The bank may, however, invoice the external costs incurred.
However, this is often criticized from the point of view of economics . If it is forbidden to charge costs (e.g. for direct debit returns ) to the polluter, all bank customers must bear these costs through higher basic fees. This eliminates the positive control effect of charges. Even the beneficiaries (in the case of direct debit fees , customers who did not have sufficient funds ) U. Disadvantages, since there is an incentive to terminate account connections to customers that cause these costs.
Individual bank charges
- Literature on bank fees in the catalog of the German National Library
- Unauthorized bank charges - a list from the management consultancy Carsten Geis
- Andreas Piekenbrock : Lecture “Private Autonomy at Bank Counters - Reasons and Limits for Judicial Control of Bank Charges” on YouTube
- BGH, judgment of April 21, 2009 - XI ZR 55/08
- Gerd Nobbe, Admissibility of bank fees , WM 2008, p. 185 ff.
- BGHZ 136, 261
- BGH, judgment of November 30, 1993, Az .: XI ZR 80/93 = BGHZ 124, 254 : The bank may not charge fees for cash deposits and withdrawals at the bank counter when it comes to its own account. The institute only fulfills the customer's statutory right to surrender . On the other hand, fees may be charged for payments to a third-party account. Cash withdrawals at the bank's own ATM may only be charged if the customer can at least get the cash free of charge at the counter.
- BGH, judgment of June 18, 2019, Az .: XI ZR 768/17
- BGH, judgment of May 7, 1996, Az .: XI ZR 217/95 = BGHZ 133, 10
- BGH, judgment of July 15, 1997, Az .: XI ZR 269/96 and XI ZR 279/96 = BGHZ 136, 261
- BGH, judgment of May 7, 1991, Az .: XI ZR 244/90 = BGHZ 114, 330
- BGH, judgment of October 19, 1999, Az .: XI ZR 270/96
- LG Frankfurt am Main, judgment of June 24, 1999, Az .: 2/2 O 16/99, RdW issue 19 / III
- accordance with credit to the account of the beneficiary's credit institution; it thus also fulfills a legal obligation. Paragraph 1 of the German Civil Code (BGB), when transferring funds to third-party institutions, a credit institution owes the customer not only an “effort to achieve success”, but an error-free
- BGH, judgment of March 8, 2005, Az .: XI ZR 154/04 = BGHZ 162, 294
- BGH, judgment of April 9, 2002, Az .: XI ZR 245/01 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
- BGH, judgment of February 13, 2001, Az .: XI ZR 197/00 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
- BGH, judgment of June 7, 2011; Ref .: XI ZR 388/10 . Website of the Federal Court of Justice. Retrieved September 7, 2013
- OLG Karlsruhe, judgment of February 8, 2011, Az .: 17 U 138/10, Rn. 16 ff . Website of the Justice of Baden-Württemberg. Retrieved September 7, 2013.
- Gerd Nobbe, Admissibility of bank fees , in: WM 2008, p. 194
- BGH, judgment of October 21, 1997, Az .: XI ZR 25 / 97BGH = WM 1997, 2301 , (2302)
- BGH, judgment of May 13, 2014, Az .: XI ZR 405/12
- BGH, judgment of October 28, 2014, Az .: XI ZR 348/13
- Stiftung Warentest: sample letter credit processing fee , on test.de from December 13, 2012, accessed online on May 13, 2013
- Stiftung Warentest: Loan Processing Fees: Judgments for Consumers , on test.de from January 17, 2013, accessed online on May 13, 2013
- BGH, judgment of May 8, 2012, Az .: XI ZR 61/11 and BGH, judgment of May 8, 2012, Az .: XI ZR 437/11 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
- BGH, judgment of February 17, 2004: Az .: XI ZR 140/03 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
- such as the amortization set-off clause for construction financing
- BGHZ 106, 42
- BGHZ 74, 129
- See Klemens Pleyer / Herwart Huber, value dates and transfer times in the giro relationship , in: ZIP 1987, 424 (430)
- BGHZ 135, 316
- BGH, judgment of May 6, 1997, Az .: XI ZR 208/96
- BGH, judgment of April 14, 1992, Az .: XI ZR 196/91 = BGHZ 118, 126
- Cf. u. a. BGH WM 1997, 1747, 1799; BGH WM 2001, 20
- BGH, judgments of April 21, 2009, Az .: XI ZR 55/08 and XI ZR 78/08 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
- BGH, judgment of March 12, 1991, Az .: XI ZR 190/90 = NJW 1991, 1817
- BGH, judgment of November 30, 2004, Az .: XI ZR 200/03 = BGHZ 161, 189
- Georg Bitter , Jurists should think economically , in: FAZ from June 20, 2007, p. 23