Collective consumer protection is now also one of the tasks of financial supervision.
(Photo: imago images/Schöning)
Frankfurt For around eight years, the financial supervisory authority Bafin has not only been responsible for monitoring banks, insurers and financial markets, but also for collective consumer protection. An expert opinion commissioned by the Federation of German Consumer Organizations (VZBV) now comes to the conclusion that the powers of the Bafin should be defined more clearly and comprehensively in the laws so that they can better protect consumers.
“For example, the Bafin must always be able to intervene when the consumer centers have won a judgment in court. The aim must be that the Bafin can also oblige providers to repay illegal fees,” demands VZBV board member Ramona Pop.
The report, which is available to the Handelsblatt, was created by Peter Rott. He is a professor of civil law and commercial law at the University of Oldenburg and also a member of the Bafin Consumer Advisory Board.
Rott cites, among other things, a judgment by the Frankfurt Administrative Court. This had overturned an injunction by the Bafin against the charging of negative interest after an objection by the provider because a decision by the Federal Court of Justice (BGH) was still pending and had to be taken into account by the Bafin (Az. 7 K 2237/20.F).
According to the VZBV expert, however, the legal opinion that the Bafin always has to wait for a decision from the BGH is problematic, since legal disputes between companies and consumers often end in a settlement. In this way, banks would have the opportunity “not only to torpedo the clarification of legal issues by the highest court, but also the enforcement of the law by the Bafin,” according to the expert.
Consumer claims could become time-barred
A second example concerns a general decree of the Bafin premium contracts. In June 2021, for example, the supervisory authority obliged the institutes to inform all affected consumers of the ineffectiveness of an interest rate adjustment clause contained therein, to assure them of a subsequent calculation of interest or to offer an amendment contract.
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More than 1,100 credit institutions had lodged an objection. An administrative court still has to clarify the matter. Meanwhile, consumer claims could become statute-barred. To this end, the expert calls for a statute-of-limitation effect for the orders of the Bafin.
The Bafin itself appeases: “The judgment of the administrative court in Frankfurt am Main is not yet final. It would therefore be premature to take this as an opportunity for a legislative initiative,” said a Bafin spokeswoman for the Handelsblatt. The suspensive effect of contradictions is also “a general legal principle, not a special feature of Bafin supervisory law”. “From our point of view, the two cases mentioned do not give any reason – at least at the moment – to strive for an expansion of the possibilities for law enforcement,” said the Bafin spokeswoman.
A spokesman for the Federal Ministry of Finance also told the Handelsblatt that no changes to the law are in the works with regard to additional legal action and enforcement options and the Bafin Act (FinDAG).
The Bafin and the VZBV experts seem to agree that cooperation in collective consumer protection should be intensified. However, the Bafin spokeswoman countered the suggestion in the report that the Bafin’s obligation of confidentiality towards the VZBV should be lifted by pointing out that the obligation of confidentiality is regulated by EU law.
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