Banking sector: inadmissible general terms and conditions

Jun 23, 2021 Benn-Ibler Rechtsanwälte

In a landmark ruling against Postbank, the Federal Court of Justice (Bundesgerichtshof, BGH) ruled that the clauses in the General Terms and Conditions (GTC) on the increase of fees for current accounts were to be considered invalid if they feigned the customer's consent to changes in the GTC and special conditions without any restriction on the content.

According to the General Terms and Conditions of the defendant bank, it is possible to terminate the contract without notice after prior information in text form, but it is only possible to adhere to the contract without changes by actively objecting with the risk of a change notice.

In contrast to the court of appeal, the BGH declared the restriction of the content review pursuant to Sec. 307 (3)(1) German Civil Code (Bürgerliches Gesetzbuch, BGB), no content review for statutory identical GTC clauses, to be inapplicable. The content of the clauses was precisely not identical to the provisions of section 675g BGB, amendment of the payment services framework contract.

The defendant's clause in which it reserves the right to make all changes to the GTC and an adjustment is made by means of feigned consent contradicts the basic idea of Sec. 305(2), Sec. 311(1), Secs. 145 et seq. of the German Civil Code (BGB), because it evaluates silence as acceptance. It thus constitutes an unreasonable disadvantage according to Sec. 307 (1)(1), (2)(1) BGB.

The clause concerning the change of the fee for the main service also cannot withstand a content review of Sec. 307 BGB. A fictitious consensus on this contradicts the requirement of good faith, Sec. 307(1) (1), (2)(1) BGB. In the case of such a far-reaching change in the main service, increase or raising of the fee, an amendment agreement is even necessary. A mere fiction of consent in the absence of a timely rejection cannot be sufficient.

As a result, banks can no longer refer to the general terms and conditions with regard to earlier fee increases and consumers are thus able to reclaim the fees already paid.

BGH, XI ZR 26/20 (27. April 2021)