Consent fiction in focus
Consumer advocates complain about free passes for banks
2/9/2023 10:03 am
Consumer advocates criticize that banks can still tacitly raise fees. A judgment by the Federal Court of Justice in 2021 was supposed to prevent this, but left loopholes. The banks see this as a considerable additional expense. A Union application could help.
In the conflict over bank fees, consumer advocates fear a change in the law to the detriment of customers. Banks and savings banks wanted to ensure that even in the case of serious contract changes such as price increases, the tacit consent of customers was sufficient again, i.e. consumers did not have to give their express consent, said Dorothea Mohn from the Federal Association of Consumer Organizations. Until a ruling by the Federal Court of Justice, some institutes would have used the tacit consent “as a free pass for extensive contract modifications and the introduction of new fees,” criticized Mohn.
After a lawsuit by consumer advocates in April 2021, the Federal Court of Justice (BGH) decided that banks must obtain the consent of their customers when changing general terms and conditions. The clause, according to which financial institutions can assume tacit approval if customers do not object to a change within two months, puts customers at an unreasonable disadvantage. Financial institutions must therefore subsequently ask for approval of current fees. In addition, bank customers can reclaim fees that institutions have charged without their explicit consent.
According to consumer advocates, the judgment does not rule out moderate contract changes by tacit consent – known in technical jargon as a fiction of consent. When the contract is concluded, however, it must be clearly regulated according to which standards changes are to be made by the institutes, explained Mohn.
Banks complain about the disruption and expense
The German credit industry argues against, the contractual relationship between the customer and the bank was significantly affected by the BGH ruling. In order to create legal certainty, the legislature should therefore set the framework “for mass business-suitable and customer-oriented adjustments to general terms and conditions in bank contracts by means of fictional approval”, demanded the umbrella organization of the five major banking associations in Germany.
The CDU/CSU faction sees it similarly submitted an application, which is to be debated in the Bundestag this Thursday. It states that the previous practice of the fictional consent clause had been declared illegal by the BGH judgment. The Union faction called on the federal government to create legal certainty for the business relationships between financial institutions and bank customers.
The implementation of the BGH judgment in practice has been causing trouble for some time. Consumers complained to the financial regulator Bafin. In particular, the question of the reimbursement of fees was at stake. Banks and savings banks criticize, among other things, that the judgment leads to a great deal of additional work.