GER: Banking Fees – Silence Doesn’t Imply Consent

Dec 13, 2024 Benn-Ibler Rechtsanwälte

The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) had to decide on a dispute about bank service fees which a customer wanted to recover from his bank. The reason was that he had not explicitly agreed to pay bank service fees. According to the BGH, the fact that a customer has paid fees for years without objecting does not mean that the bank can simply keep the money.

In the case at hand, the plaintiff sought reimbursement of service fees as well as debit card fees. According to an invalid provision in the bank’s general terms and conditions, the customer’s consent to proposed changes in the terms and conditions or fees for banking services is presumed if customers do not notify the bank of their disagreement within a certain period (‘presumed consent clause’).

The defendant bank informed the plaintiff that account service fees would be charged for his two current accounts as of 1 January 2018. As a result, the plaintiff terminated one of his current accounts. Then, the bank charged a basic service fee for the other current account from 1 January 2018. The plaintiff did not give his active consent to these changes in the general terms and conditions of business. However, the bank debited the fees from the plaintiff’s account. In July 2021, the plaintiff objected to the debit of the fees, bringing an action for repayment of the fees charged. The lower courts, however, dismissed the case.

The BGH has now ruled as follows:

The plaintiff may claim repayment of the account management fees. The claim for repayment under the law of unjust enrichment exists because the defendant bank made the charges without a legal basis.

The use of the current account does not in itself constitute consent to the bank’s amendment of the general terms and conditions. It merely meets the requirements of modern business and commercial transactions in everyday life.

The fees charged by the bank were also not simply deemed to be agreed. Such a clause is invalid, the BGH held.

Press release no. 219/2024 on BGH, XI ZR 139/23 (19 November 2024)