Federal Ministry of Justice reacts to the BGH's ruling on fee increases by banks

Until a judgement by the Federal Court of Justice, it was common practice to make changes to general terms and conditions if the customer did not object within a certain period of time.

In April 2021, the Federal Court of Justice (BGH) ruled that banks must have their customers' consent if they make changes to their GTCs. According to the BGH, amendment clauses without consent amount to a one-sided, unrestricted authorisation of the bank to make changes and are therefore invalid. The BGH emphasised that an amendment agreement was necessary for far-reaching changes that could amount to the conclusion of a new contract. For banks, this meant that they had to subsequently ask for consent to current fees and, under certain circumstances, customers could reclaim fees that were charged without explicit consent.

“The BGH’s judgment had a significant impact on practice and posed major practical challenges for banks, with limited advantages for all parties involved. The fact that this did not go unnoticed by the government is a good sign,” said Johanna Weißbach, expert in commercial disputes at Pinsent Masons.

A proposal has been submitted to Handelsblatt according to which the Ministry of Justice would like to make it possible to give implicit consent again. In this case, customers automatically agree to a change in the GTCs if they do not react to the announcement.

It remains to be seen whether the proposal will ultimately become law. What is clear is that all parties involved will benefit from greater legal certainty - credit institutions, customers and the judiciary, which is involved in proceedings relating to reclaims and the (in)effectiveness of amended clauses