This emerges from a letter from the Federal Association of Volks- und Raiffeisenbanken (BVR), which is available to the Handelsblatt. “In the meantime, together with the German Savings Banks and Giro Association (DSGV), we have named three savings banks and three cooperative banks as sample complainants and submitted a joint statement of grounds for objection,” says the letter from the end of September, which is addressed to board members and executives. The aim is to carry out a sample procedure on behalf of all contradicting cooperative banks and savings banks.
The close cooperation between savings banks and Volksbanks is unusual. After all, they are actually in fierce competition. But the fight against the Bafin general ruling unites the opponents. Ultimately, it is about the question of how much power the financial supervisory authority can use to put financial institutions in their place in the future.
Should the Bafin prevail in this case with the order, it is obvious that they will use this far-reaching instrument more often.
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The new Bafin boss Mark Branson made it clear just a few days ago in an interview with Handelsblatt that the Bafin wants to take harder and faster action in the event of grievances. “If there is a grievance, we have to do something, even if this issue is not clearly regulated in the law.”
The banks can take legal action before the administrative court
In the financial sector, the Bafin is facing fierce headwinds with its second general order on consumer protection. 1156 and thus around 70 percent of all German credit institutions have filed an objection. If the Bafin rejects the contradictions, the financial institutions concerned can sue the administrative court.
With this ruling, the Bafin wants to force the financial institutions to inform owners of long-term premium savings contracts about ineffective interest clauses. If banks and savings banks have used wrong interest clauses, they should close the contractual loophole and promise consumers back payments. However, if savings banks and banks contradict the general decree, they do not have to comply with the Bafin order.
In view of the enormous number of contradictions, the joint approach of the savings banks and Volksbanks also suits the Bafin. It announced last week that it would “give priority to decisions on individual contradictions in order to then conduct model administrative proceedings”.
The BVR expects that even the private banks will join a possible lawsuit against the Bafin, “because the questions to be clarified therein are equally important for all central banking associations”. On request, the BVR stated that the test case should be considered separately from the most recent ruling by the Federal Court of Justice (BGH) “and its legal implications”. He did not want to comment further.
The DSGV emphasized that a few sample procedures had been agreed so that 1100 administrative procedures would not have to be carried out. “In order to keep this as simple as possible, these procedures are jointly supervised or represented.”
Consumer advocates calculate back payments of 3600 to 4600 euros
On the one hand, financial institutions, especially savings banks, are threatened with high back payments to customers from the Bafin general ruling. There are likely to be more than a million such savings contracts. According to calculations by various consumer advice centers, savers are entitled to an average of 3600 to 4600 euros in arrears.
On the other hand, the financial sector is about principle. The financial institutions complain that the Bafin anticipates a supreme court decision with the general order. According to the BVR letter, such an “administrative act may not be issued if decisions by the BGH on the legal situation are foreseeable”.
In the opinion of the Bafin, however, it was already clear before the BGH judgment of October 6th that many financial institutions incorrectly calculated the interest for a certain period of time. She refers to older decisions of the BGH.
The highest German civil court ruled a few days ago that banks and savings banks may only adjust variable interest rates in premium savings contracts according to clear criteria (Az. XI ZR 234/20). In the case of long-term savings contracts, the financial institutions also have to use a reference interest rate for long-term investments – which is much cheaper for customers and less favorable for banks, especially in view of the negative short-term interest rates.
Judgment of the Federal Court of Justice with a signal effect
The consumer center Saxony had complained about a so-called model declaratory action. She accuses the Sparkasse Leipzig of having paid customers too little interest in premium savings contracts for years.
The judgment applies directly only to the Sparkasse Leipzig and 1,300 savers who had joined the model lawsuit. Since many savings banks in particular have offered similar savings contracts, it has a signal effect. The lower court, the Higher Regional Court (OLG) Dresden, is to determine exactly how the higher reference interest rate looks. For this, the OLG is likely to fall back on the expertise of experts.
Savers can also enforce possible claims through individual lawsuits. Here, judgments are now also known in which regional courts award customers high back payments. The district court Munich I decided at the end of July that the Stadtsparkasse Munich had to pay 8,000 euros, as announced by lawyer Thomas Storch, who had reached the verdict (Az. 22 O 15646/20). The Sparkasse appeals.
The Dresden Regional Court awarded the plaintiff an arrears payment of almost 11,000 euros. The Ostsächsische Sparkasse Dresden has also appealed, the case is already being heard before the Dresden Higher Regional Court.
More: According to the BGH interest ruling: What consumers can do if they want to demand additional payments from savings contracts