In the large courtroom of the Federal Court of Justice on Wednesday, there is a lot of money for banks – and for savers. The Eleventh Civil Senate negotiates premium savings contracts such as those concluded between 1990 and 2010. It used to be an honest but safe form of investment. For banks and savings banks, these contracts with relatively high interest rates are very expensive in the era of low interest rates, which is why they have lowered interest rates at all levels. . From the perspective of Consumer Center (VZ) Sachsen, however, this was illegal. It therefore initiated six model declaratory actions; The first against Sparkasse Leipzig, supported by around 1,300 plaintiffs, is currently under negotiation. Consumer advocates have also taken legal action in other federal states. “It affects the whole industry,” says Michael Hummel of VZ Sachsen.
The sums are likely to be enormous. No one knows the exact size because the banks do not disclose the numbers. However, several consumer advice centers have now verified thousands of contracts and estimate the average damage caused by too low interest payments at 4,000 euros – per saver. The number of credit institutions concerned is also likely to be much larger than initially expected. VZ Sachsen had listed more than 160 banks and savings banks on the Internet. But when the Federal Financial Supervisory Authority Bafin in June forced banks and savings banks to inform premium savers about ineffective adjustment clauses, more than 1,000 credit institutions reportedly appealed against them.
Legally, the BGH deals with interest rate clauses contained in savings contracts with names such as “Bonusplan”, “VorsorgePlus” or, as in the particular case, “S-Prämiensparen flexible”. In addition to a tiered premium paid on the respective savings deposit, the contracts contain variable interest rates. At Sparkasse Leipzig, the clause read succinctly: “The investment of savings is variable, currently with …% interest. Sparkasse therefore left a clever void that it wanted to fill at its discretion depending on the market situation.
How is the real interest rate for savers calculated?
The BGH declared such clauses illegal at an early stage, first in 2004 and then in numerous other judgments. For the Higher Regional Court (OLG) of Dresden, which had to rule at first instance on the model of declaratory action, the question was therefore clear: “The unlimited power of a credit institution to pay the saver a rate of interest published on a notice not showing that the minimum degree of computability required, ”he said in his judgment of April 2020. It is difficult to imagine that the BGH will now see things differently.
On the other hand, the question is more complicated: how is the interest rate of savers calculated if the savings contract leaves them open? The courts must fill these gaps in the contract by means of a “complementary interpretation of the contract”. It is therefore necessary to define the parameters of calculations. It starts with the question of the correct benchmark interest rate, i.e. the computational variable on which the contractual interest rate is based. VZ Sachsen proposed an interest rate from the Deutsche Bundesbank for longer term investments and therefore followed the earlier demands of the BGH. However, the Higher Regional Court in Dresden questioned whether a single interest rate could really be applied as a model to all contracts. It is also conceivable that individual contracts will have an “individual impact” due to a separate agreement.
An individual impact? If BGH were to follow this, it would be a major setback for savers. Then, even after a success in the Karlsruhe pilot process, customers would have to fight in detail about the level of their complaints. “If the BGH says that all this must be clarified individually, then we can bury the model of declaratory action”, fears Michael Hummel.
Other lawsuits may be necessary to assert the claims
This would be further evidence of the shortcomings of the often-complained declaratory action model, which consolidates lawsuits but leaves those involved alone to enforce claims – because such a declaratory judgment only clarifies issues. fundamental, but does not provide a means of order execution. If savings banks block comparisons with savers, further lawsuits may be needed. They could be brought together again, for example through a legal service provider – which, of course, would claim part of the payments itself.
And there are other uncertainties in calculating interest. For example, what should be the difference between the benchmark and the contractual interest. The savings banks prefer an absolute value here. If, for example, the gap had been four percentage points at the start, then, from their perspective, the number would remain four. What this means in the phase of low interest rates is easy to calculate: the interest on savings would go to zero, in the worst case even below. BGH has so far not considered such a rigid margin guarantee to be interest-compliant, so it would more likely equate to a relative interest rate differential, which decreases as the benchmark interest rate drops. But here, too, every tenth will count. Financial fluctuations one way or the other can also raise the seemingly trivial question of whether interest payments are calculated exactly along the ever-changing interest rate curve – or whether a moving average is used. as a basis.
The issue of limitation remains, after all, these are often very old contracts. OLG Dresden had assumed that the three-year limitation period only begins at the end of the contract – and not already with the annual interest credit. This is a very user-friendly variant and, given previous BGH case law, Michael Hummel is confident that this will be confirmed in Karlsruhe. It would be the most expensive solution for banks and savings banks – claims could possibly go back decades.