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07.05.2020 | KPMG Law Insights

Dresden Higher Regional Court rules in model declaratory judgment action with regard to interest calculations

Dresden Higher Regional Court rules in model declaratory action with regard to interest calculations in savings contracts – The significance and consequences for savings banks

On April 22, 2020, the Dresden Higher Regional Court surprisingly issued a ruling following the oral hearing in the model declaratory judgment proceedings against Stadt – und Kreissparkasse Leipzig (Case No. 5 MK 1/19). Only at first glance a consumer-friendly decision. At second glance, many questions remain unanswered.

1. facts

In recent weeks and months, most savings banks have moved to cancel the so-called “S-Prämiensparen flexibel” savings contracts. The background to this is the uneconomical nature of these contracts, which has existed for some time due to the persistently low interest rate environment. The validity of the termination has now been clarified by the highest court in a ruling of the Federal Court of Justice dated May 14, 2019, XI ZR 345/18.

In this context, a dispute has also arisen over the need for a retroactive interest rate adjustment. This is based on the fact that a decision by the Federal Court of Justice (BGH) in 2004 (Case No. XI ZR 140/03) established that the interest rate adjustment clauses used at that time were too vague. As the Federal Court of Justice (BGH) ruled in its judgment of June 10, 2008 (Case No. XI ZR 211/07), the resulting gap in the contract must be closed by means of supplementary interpretation of the contract.

The way in which the gap is closed, i.e. the relevant criteria for adjusting the interest rate, was and still is in dispute between the savings banks on the one hand and the customers on the other. With the model action for a declaratory judgment against Sparkasse Leipzig, the Consumer Advice Center Saxony has attempted to create clarity in favor of the affected customers.

2. contents of the decision before the OLG Dresden

Surprisingly, the Dresden Higher Regional Court issued a ruling immediately following the oral proceedings. The consumer association initially classified the ruling as a success for savers. However, a closer look reveals a differentiated picture:

The consumer association was successful in its application for a ruling that the undifferentiated interest rate adjustment clauses frequently used prior to 2004 (e.g., only the phrase “variable interest rate”) were invalid. However, this is not a novelty and in this respect also not a success, because the fact that these clauses are not sufficiently defined has already been established since the BGH ruling from 2004, as explained above.

Furthermore, the consumer association has been successful in its legal opinion that the claims for back interest are not subject to their own statute of limitations (which would then have already occurred to a large extent). The Dresden Higher Regional Court assumes that the statute of limitations does not begin to run until the savings agreement is terminated. This could have a significant impact, as the scope of risk for savings banks is likely to have increased in any case.

However, the consumer association did not succeed with its further applications, according to which the specific interest calculation methodology to be applied should be determined in the sense of the methodology considered applicable by the consumer association (in particular the use of a long-term moving average interest rate). In the opinion of the court, this was to be determined in the individual case according to the hypothetical will of the parties.

3. further open factual and legal implications

First of all, of course, it must be noted that all findings made apply in each case only in the relationship between the parties. The decision of the Dresden Higher Regional Court is therefore at best indicative for other legally independent savings banks.

Apart from the determination of the start of the statute of limitations, the judgment does not provide much insight. In the end, the relevant points of dispute, namely which form of interest calculation is to be applied in the context of the supplementary interpretation of the contract, remained open. These issues are now left to case-by-case adjudication. In addition, the question expressly left open as to whether the customers concerned should be deemed to have forfeited their rights in view of the fact that they have accepted the interest rate adjustment by the savings banks for many years will have to be decided on a case-by-case basis. It remains to be seen whether an appeal will be filed, in particular by Verbraucherzentrale Sachsen, on the basis of the rejected declaratory goals.

4. outlook and consulting services

The Consumer Association of Saxony has announced further model complaints against Saxon savings banks. Other states are likely to follow suit due to the statute of limitations issue that will sooner or later arise.

It cannot be ruled out that the first judgment in a model declaratory judgment action (in addition to the consumers who are now facing an individual action anyway and who had joined in the specific proceedings) will bring further individual plaintiffs onto the scene.

KPMG Law already represents several savings banks and has extensive expertise in handling mass claims and mass actions. Let us analyze your individual risk based on your portfolio and determine a joint strategy.

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