Premium savers are getting more tailwind from the Federal Court of Justice in the multi-billion interest rate dispute with savings banks and other financial institutions.

The eleventh civil senate continued its pro-saver jurisprudence with a judgment published on Tuesday.

Most recently, the Banking Senate made it clear in a landmark judgment from 2021 that interest rates in premium savings contracts should not be adjusted “in the manner of landlords”.

Katja Gelinsky

Business correspondent in Berlin

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In the judgment published on Tuesday, the BGH confirmed the invalidity of variable interest rate adjustment clauses that unreasonably disadvantage savers.

In addition, the Bank Senate made certain decisions regarding the calculation of interest rates that are in the interest of savers.

However, no final decision has yet been made on the question of the amount to which the injured premium savers are entitled.

In any case, the explanations of the Dresden Higher Regional Court on the central issue of the dispute, according to which reference interest rate the premium savers' claims for additional payments are to be calculated, do not stand up.

Consumer advocates had attacked the judgment passages on the reference interest rate because they feared disadvantages for savers.

The higher regional court must now clarify the question of the reference value again, taking into account the legal opinion of the BGH.

Court must redetermine reference interest rate

The Dresden court had argued that it could not determine a reference interest rate because it could not be ruled out that individual savings contracts contained individual agreements.

The BGH now complained that this assumption was incorrect in law.

The Dresden court must now make up for the determination of the reference interest rate.

For this purpose, the Banking Senate gave it guidelines from its previous case law: "According to the concept of savings contracts designed for long-term savings, it is in the best interest to use an interest rate or a current yield with a long term as a reference for the interest on savings deposits," emphasized the BGH out.

When determining the reference interest rate, the Higher Regional Court will also have to take into account that the savings contracts are a risk-free form of investment.

In their 17 model declaratory actions, the consumer advice centers are calling for a sliding reference interest rate to be used as a basis.

This would take past developments into account – to the benefit of savers, since interest rates have been high in recent decades.

According to the calculations of the consumer advocates, savers would receive 30 to 60 percent less interest if this were calculated using a reference value that the banks demand.

Michael Hummel, head of the legal department at the consumer advice center in Saxony, rated the new BGH ruling as a good basis for further legal disputes.

Hummel was relieved that the Federal Court of Justice had confirmed its case law on the calculation of the interest rate difference: When calculating the specific interest rate, a relative difference between the initially agreed interest rate and the reference interest rate should be used as a basis.

No violation of price adjustment right

"Only such an interpretation ensures that the basic structure of the contractual conditions is maintained over the entire term of the savings contracts, so that favorable interest conditions remain favorable and unfavorable interest conditions remain unfavorable," argued the BGH.

This does not constitute a violation of the principles of the right to adjust prices because Sparkasse Vogtland has no influence on the amount of the interest rate adjustments.

Consumer advocates were concerned that the BGH's case law on this issue could change after two higher regional courts had recently indicated that the interest rate differential would be calculated in a bank-friendly manner.

The financial institutes had demanded that the contractual interest rate must maintain a rigid absolute interest rate difference to the general market interest rate.

The judgment that has now been announced is based on a lawsuit brought by the consumer advice center in Saxony.

Around 1,100 savers had joined the so-called model declaratory action, with which consumer protection associations can have legal issues clarified uniformly for all those affected.

The customers of Sparkasse Vogtland had concluded a contract for the long-term savings product "flexible premium savings".

This includes the clauses “The savings deposit will be variable, e.g.

Currently with ... % interest" or "The savings bank pays in addition to the applicable interest rate, currently

...% at the end of a calendar/savings year an interest-bearing S-premium”.

According to the BaFin supervisory authority, there are around 1.2 million premium savings contracts with comparable interest rate adjustment clauses.

In the 1990s and around the turn of the millennium, savers had signed the contracts, primarily with savings banks, to provide for old age.

When interest rates then fell in the course of the global financial crisis, many financial institutions pushed the variable interest rate down considerably, invoking the adjustment clauses.

According to the calculations of the consumer advice centers, which checked more than 10,000 long-term savings contracts from various savings banks and banks, the premium savers nationwide were wrongly not paid interest amounts of around 3600 euros each.

The potential repayment claims against the financial institutions total billions (reference number: XI ZR 257/21).