With its judgment of 6 October 2021 – XI ZR 234/20 – the Federal Court of Justice (BGH) settled most of the legal issues that had been open until then, in favor of premium savers. It is then clear that all affected savers have the opportunity to recalculate long-term savings contracts and demand additional interest. This applies to virtually all savings contracts that are normally entered into before 2004 and which do not contain sufficiently specific interest rate adjustment rules.
Will banks and savings banks recalculate affected savings contracts and pay interest subsequently?
Unfortunately, the answer is no. Many examples show that banks and savings banks in Germany do not turn to their customers on their own initiative when case law has declared previous business practices unacceptable. Affected premium savers will only be entitled to their rights if they actively demand it. The credit institutions hope that most of those affected will not do anything by themselves.
How can interest be recalculated correctly?
With its judgment of 6 October 2021 – XI ZR 234/20 – the Federal Court largely clarified the calculation modalities. In the past, banks and savings banks have always arbitrarily changed interest rates at irregular intervals for premium savings contracts that do not contain sufficiently specific interest rate adjustment clauses. These have usually been ongoing and significant interest rate cuts. However, according to BGH’s case law, interest rate changes must always be based on an appropriate, generally applicable reference rate published by the Deutsche Bundesbank. Changes in interest rates must be made on a monthly basis.
What is the correct “reference rate”?
So-called “time series” published by the Deutsche Bundesbank can be used as a reference rate, representing the interest rates that are generally usual on the market on a monthly basis. The problem arises, however, that the Deutsche Bundesbank publishes innumerable different time series. According to BGH’s case law, it must now be decided retrospectively which reference interest rate the parties to the savings agreement would have agreed with each other if they had known at the time the agreement was entered into that the arbitrary interest rate adjustment per. the bank is unacceptable. The result that can be achieved using such a method, known in legal jargon as “supplementary interpretation of the contract”, is very controversial. With its judgment of 22 April 2020 – 5MK1 / 19 – the Higher Regional Court of Dresden did not make a final decision in this regard. The judgment of OLG Dresden represents the decision of the lower court on the judgment of BGH of 6 October 2021. However, OLG Dresden had expressed its approval of the application of the reference interest rate for Deutsche Bundesbank with the abbreviation WX4260. The current term for the Deutsche Bundesbank is: “Outstanding returns on domestic bearer bonds / mortgage loans Pfandbriefe / RLZ of more than 9 to 10 years / monthly values”. The Federal Court has now referred the dispute back to the Dresden Higher Regional Court and ordered the Higher Regional Court to render a binding decision using a supplementary interpretation of the contract. The result remains to be seen. It is very possible that OLG Dresden will continue to declare Deutsche Bundesbank’s time series valid. However, there was also some criticism in the literature, so another decision seems possible. In any case, the question of which reference rate to apply is currently open.
What is the “relative interest rate spread”?
By its judgment of 6 October 2021 – XI ZR 234/20 – BGH decided that the adjustment of the contractual interest rate to the development of the reference rate should take place within the meaning of a “relative interest rate adjustment”. The Federal Court ruled against an “absolute interest rate adjustment”. What is the difference now? The whole discussion is basically about the credit institution’s so-called “margin”. This is understood as the bank’s profit margin, which follows from the fact that the interest rate originally agreed in the savings contract is somewhat below the market reference rates. It is generally common because, after all, credit institutions also have to make money. The smaller the difference between the contractually agreed interest rate and the reference rate, the “more advantageous” the contract is for the saver. If BGH had now decided on an absolute interest rate adjustment, it would have meant that the difference between the contractual interest rate and the reference interest rate in the event of future interest rate changes should always remain the same in absolute value. number (percentage point). If, for example, an interest rate of 2.5% was initially agreed in the premium savings contract, and the reference interest rate was at the same time 5%, this means an interest rate difference of 2.5 percentage points, which would also have to be maintained in the future if there was an absolute interest rate adjustment. If the reference rate e.g. was reduced to 4%, it would result in a contractual interest rate of 1.5%. When market interest rates fall, this absolute interest rate adjustment has the advantage for the bank that the margin of 2.5% always remains high. However, the Federal Court did not find this justified. Rather, BGH decided that the interest rate adjustment depends on the relationship between the reference rate and the original contractual interest rate. In the previous example, this ratio is 0.5. If the reference rate is lowered to 4%, it correctly results in an adjusted contractual interest rate of 2%. BGH has therefore chosen the method of relative interest rate adjustment, which is more favorable for savers when interest rates fall.
How can a saver successfully enforce a proper recalculation?
Affected savers are usually not able to do the complicated recalculation of interest themselves. A successful claim for a claim, however, presupposes that the plaintiff can quantify his claim. Various consumer protection organizations offer the creation of similar calculations for a fee. As long as the case law is not definitively clarified as to which reference rate to apply, each calculation represents only one possible outcome. It is likely that several courts will consider the subsequent calculation of savings contracts in the near future. As long as there is no final decision on the applicable reference rate, each court must rule on a case-by-case basis. It is therefore possible, for example, that the courts in Munich have a different view than in Hamburg. It then depends on the jurisdiction in force at the statutory seat of the respective credit institution. Affected savers are therefore advised to contact a specialist lawyer who is familiar with current case law. It is also particularly important that the lawyer himself is able to make the complicated interest calculations. It is a task that cannot be expected of the general practitioner. An expert, on the other hand, should have the task of preparing an expert opinion, which would be associated with high costs, which are not covered by the legal aid insurance. Only lawyers who specialize in premium savings contracts are able to perform the calculations themselves at no extra cost. This should be clarified with the lawyer before hiring. One must also keep in mind that credit institutions are generally not willing to voluntarily pay full interest subsequently. Banks and savings banks usually try to phobia savers with an amount that is far below the result of a correct calculation. Only those who are willing to waive additional requirements will receive an additional payment at all. You should not accept such offers from banks and savings banks.
Capital gains taxation issues
A complete calculation must also take into account the capital gains tax that the bank has previously paid to the tax office. If the corresponding documents are still available, they must be included in the calculation. If there are no longer sufficient documents, the credit institution bears the burden of proof and the explanation for the claim that capital gains tax has been paid.
When can banks and savings banks terminate savings contracts themselves?
Savers basically have an interest in keeping old savings contracts as long as possible, as premiums or bonuses get higher and higher the longer the contract runs. The bank is only entitled to terminate the contract when the highest premium level has been reached. If a credit institution attempts to terminate a premium savings contract at an earlier date, the termination is usually without effect. Those affected should then contact a specialist lawyer.
With its judgment of 6 October 2021 – XI ZR 234/20 – BGH decided in favor of savers that a limitation period for claims for subsequent interest calculation before the expiry of the premium savings contract is excluded. Only when the contract expires or has been legally terminated do the remaining claims become obsolete after three years at the end of the respective year.