Ant banks in Germany still show negative interest rates in their price notices on the internet. This emerges from a comparison by the Internet portal Verivox, which the FAZ has exclusively received in advance. These include, among other things, a few cooperative banks; According to their own statements, some of the institutes have not yet changed their price notices, although in practice they have long since stopped charging negative interest. “Since mid-September 2022, we have not been charging any more negative interest,” said a spokesman for fintech Tomorrow, for example, which is one of the last remaining on the Verivox list. According to Verivox, over the course of the past year, the number of banks in Germany that take negative interest from customers has continued to fall towards zero, somewhat lagging behind the ECB interest rate hikes of more than 400. However, there are still heated arguments in several courts about a possible repayment of negative interest.
Even after the end of negative interest, there is still a lack of clarity as to who was actually allowed to take negative interest, where, when and from whom – and who might have to pay back money. This week, the Banking Senate at the Federal Court of Justice (BGH) had to deal with the issue of negative interest rates for loan agreements for the first time. Some of these contracts date back to before the financial crisis, well over 15 years.
Lower limit not provided
At the time, hardly any of those involved could have imagined that reference interest rates could one day become negative. However, precisely this constellation of interest rate escalation clauses had to be clarified in the legal dispute between the state of North Rhine-Westphalia (NRW) and DZ Hyp AG. In 2007, the legal predecessor of the cooperative credit institute and NRW agreed on five promissory note loans for 100 million euros. The interest clause was based on the three-month value of the Euribor. A lower limit was not provided for in the contract. From March 2016 the reference interest rate was negative. From then on, the opinion in Düsseldorf was that the obligation to pay interest was reversed; Ultimately, the Ministry of Finance claimed around EUR 160,000 from DZ Hyp.
Not an unusual claim: other comparable cases against banks are pending at the BGH. Baden-Württemberg has also sought two lawsuits against lenders. The eleventh civil senate made it clear in its judgment: if negative interest is charged on loans, banks do not have to pay them (FAZ of May 10). The state of North Rhine-Westphalia, as the borrower, remains contractually obliged to pay interest. A reversal of payment flows, as argued by the plaintiffs’ attorneys, is ruled out. According to the legal sense, the interest is the payment that is to be made for the temporarily provided capital and that is calculated independently of profit and turnover. Or as Jürgen Ellenberger, presiding judge of the civil senate, sums it up: “According to this definition, interest – because it is remuneration – cannot become negative.” (Az. XI ZR 544/21)
However, this only clarifies the relationship between banks and the public sector. Lawyers consider it unlikely that peace will return after the bank decision. The only question that has been clarified is whether a borrower can even be the recipient of the loan interest if the agreed reference interest rate is negative, says Stephan Bausch, a banking lawyer at the Luther law firm. However, the highest court has not yet decided whether complaints by consumers or companies against banks in connection with “negative interest” to be paid by customers for bank deposits, also known as “custody fees”, could be successful.
#BGH #ruling #struggle #negative #interest #rates