Negative interest rates on current accounts permissible with transparent regulations

In four similar proceedings (Ref. XI ZR 61/23, XI ZR 65/23, XI ZR 161/23, XI ZR 183/23), the BGH had to decide on actions brought by consumer protection associations against various banks as to whether so-called negative interest rates, also known as custody fees or credit fees, may be charged on current accounts as well as call money and savings accounts.

The Federal Court of Justice has clarified that the deposit fee in a current account contract is a remuneration for a main service. For this reason, clauses on deposit fees for current accounts are not subject to content review under GTC law. This is because current account contracts are mixed-type contracts, some of which can be assigned to payment services and loan law as well as irregular safekeeping (Section 700 (1) sentence 1 BGB in conjunction with Sections 488 et seq. BGB). In addition to the provision of payment services, the safekeeping of account balances is an essential service or main service of the current account agreement. In addition, the low interest rates on current account balances, which used to be customary in some cases, indicate that these balances were not only used to participate in payment transactions. Private customers have an interest in the safekeeping of their money in the current account under the protection of the deposit guarantee. Moreover, the banks could in any case use 10% of the current account balances as collateral in the lending business.

However, clauses on custody fees are subject to transparency control in accordance with Section 307 (1) sentence 2 BGB. Among other things, they must be specific with regard to the amount of the fee, which does not only include the clear indication of a percentage and granted allowances. At the same time, it must be stated to which credit balance the deposit fee relates, i.e. whether this is calculated on a daily basis and which specific point in time during the day or other period is relevant.

In contrast, clauses on custody fees for deposits in call money accounts or savings deposits are subject to content review under general terms and conditions law. This is because they altered the bank's main obligation to perform and deviated from the fundamental principles of the statutory provision in a manner contrary to good faith. Savings in savings and call money accounts were primarily used for savings purposes and the accounts were often advertised with "attractive" returns or interest rates, for example. Custody fees, possibly in conjunction with a minimal interest rate - in one of the cases decided, the custody fee of 0.5% p.a. from a balance of € 50,000.00 was offset by an interest rate of 0.001% p.a. - led to the capital decreasing daily until it reached the agreed credit allowance. This contradicts the savings and investment purpose of call money and savings accounts, according to which the paid-in capital must at least be preserved, and disadvantages consumers in an impermissible manner. Deposit fees would also not be justified by the fact that credit institutions had to pay "negative interest" on certain deposits at the respective central bank over several years.

Finally, the BGH reiterated that a claim by a consumer protection association for repayment of unjustifiably collected fees to the consumers concerned is inadmissible.