Negative interest and deposit fees on current accounts only partially permissible - Court of Justice rules in Favor of consumers
The Civil Senate of the Federal Court of Justice responsible for banking and stock exchange law ruled on February 4, 2025 that the clauses on deposit fees (negative interest) in the contracts of banks and savings banks for deposits in savings and call money accounts are invalid (Ref. XI ZR 183/23; XI ZR 161/23; XI ZR 65/23; XI ZR 61/23). The deposit fee clauses applicable to current accounts are permissible in principle, but only if they are sufficiently transparent for consumers and make it clear to which balance the deposit fee relates. In this article, attorney Sascha C. Fürstenow explains these rulings in more detail and highlights the consequences for consumers.
The ECB and negative interest rates
In 2014, the ECB introduced negative interest rates for the first time. Banks and savings banks had to pay interest to the ECB in order to safely invest or temporarily park their money there. During this period, the interest rate was 0.5 percent. These costs were passed on to customers and the banks thus introduced custody fees in the form of negative interest rates. While consumers were supposed to earn interest on their deposits, they had to pay negative interest on their account balances instead. It was not until 2022 that negative interest rates were abolished at the ECB and custody fees were reduced at the banks. The consumer associations considered this business practice to be unlawful and sued in four cases.
The facts of the case
In the period between 2019 and 2022, various banks and savings banks introduced negative interest clauses (custody fee) and charged negative interest to consumers. The Consumer Advice Center Saxony, Consumer Advice Center Hamburg and the Consumer Advice Center of the Federal Association took action against the safekeeping of deposits in call money, savings and even current accounts. The BGH ruled in their favor. The fact that the banks had to pay negative interest on certain deposits at the ECB in the period from 2014 to 2022 does not justify the introduction of the custody fee on consumers’ call money and savings accounts.
Negative interest rates contradict the purpose of savings and investments
According to the BGH, the clauses on custody fees for deposits in call money and savings accounts are subject to a review of their content under general terms and conditions law because they change the main service owed by the bank in deviation from the service owed in good faith. The clauses presented did not stand up to content review as they deviated from the essential basic ideas of the statutory regulation. Deposits in call money and savings accounts are not only for the safekeeping of funds, but also for investment and savings purposes – these are to be protected against inflation through interest. Negative interest rates would therefore be contrary to the purpose of the contract and thus contradict the savings and investment purpose. This constitutes an unreasonable disadvantage for consumers in accordance with Section 307 (1) BGB, explains attorney Fürstenow.
Safekeeping of current account balances is the main service
The clauses for current account contracts are to be viewed differently according to the ruling, because the safekeeping fee is a main service from the current account contract and is therefore not subject to a content review under general terms and conditions law. However, the clauses in question also violated the transparency requirement in Section 307 (1) sentence 2 BGB and are therefore also invalid. They are not transparent enough with regard to the amount of the deposit fee, so that consumers cannot sufficiently recognize their economic burden. In addition, the clauses do not provide sufficient information about the credit balance to which the fee relates. For example, the credit balances on current accounts can change several times within one day as a result of the booking. For consumers, it is also questionable whether the custody fee should be calculated on a daily basis and up to what point in time daily transactions on the current accounts should be taken into account.
Reclaim possible?
The BGH’s recent decision in favor of consumers is welcome news, but also encourages them to take immediate action. Although it is now certain that the wrongly paid negative interest can be reclaimed, the BGH has rejected an automatic repayment to the affected consumers. This means that affected customers should review and check their contracts and account statements as soon as possible. Current account holders should also have their contractual clauses checked carefully, as the clauses presented in the four proceedings did not stand up to scrutiny. For consumers, legal advice is essential – also in order to assert repayment claims with the banks and, if necessary, to avoid the limitation period for claims. Repayment claims from 2022 are not yet time-barred until the end of 2025. It is also quite possible that older claims are not yet time-barred if measures to prevent the statute of limitations have already been taken. In certain cases, much older payment claims can be asserted if certain conditions are met. To have your individual repayment claim checked, you are welcome to contact Attorney Fürstenow.