Berliner Sparkasse prevails in model declaratory proceedings

Noerr advises Berliner Sparkasse on questions concerning general terms and conditions in banking contracts as well as on strategic questions regarding defending against class actions. On 3 June 2025, the Federal Court of Justice (Bundesgerichtshof ‒ BGH) ruled on a model declaratory action brought by the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V. – vzbv) against Berliner Sparkasse, a bank headquartered in Berlin (case no. XI ZR 45/24). In 2016, Berliner Sparkasse adjusted its fees based on a mechanism for amending general terms and conditions common in the banking sector and beyond (the “deemed consent” clause). While the Federal Court of Justice considered fee adjustments based on such a deemed consent clause to be invalid, it specifically confirmed Berliner Sparkasse’s view that a consumer’s knowledge of the invalidity of the deemed consent clause is not required for the limitation period to begin ‒ even taking European law into account ‒ and that knowledge of the facts giving rise to the claim (the fee adjustment and account statement) is sufficient. Additionally, the Federal Court of Justice decided for the first time that companies can file counterclaims in model declaratory proceedings in order to have all relevant legal issues in the dispute decided.

Background

In its judgment of 27 April 2021 (XI ZR 26/20), the Federal Court of Justice declared invalid clauses in consumer general terms and conditions providing for the customer’s consent to proposed fee adjustments to be deemed given in certain circumstances. Based on this judgment the vzbv brought a model declaratory action against Berliner Sparkasse in December 2021. The vzbv argued in particular that fee adjustments based on the invalid clause were invalid as well, thereby giving customers a claim for reimbursement of the fees concerned.

The proceedings involved a total of nine declaratory applications pursued by vzbv. However, the dispute essentially revolved around three central questions: The first question was whether the fee adjustment in 2016 was to be considered valid – despite the invalidity of the fee adjustment clause – by interpreting the contract to reflect the parties’ presumed intentions, following the Federal Court of Justice’s case law on energy supply contracts, because the customers had paid the increased fees over a longer period of time without objection (the “three-year solution”). The second question was whether customers must compensate the bank for services received and whether this issue could be resolved via a counterclaim. The third question was whether the start of the limitation period had been postponed at least until the Federal Court of Justice’s judgment was issued in April 2021. This question had arisen because German law considers knowledge of the facts giving rise to a claim (as opposed to the legal assessment of those facts) to be sufficient for the start of the limitation period.

“Three-year solution” not applicable to banking contracts

The Federal Court of Justice considered the fee adjustment invalid – consistent with its judgment of 19 November 2024 (XI ZR 139/23) – because the “three-year solution” developed for energy supply contracts cannot be applied to banking contracts. In the Federal Court of Justice’s view, the decisive factor was that the deemed consent clause (unlike price adjustment clauses commonly used in the energy sector) did not directly modify the contract’s content. Consequently, the invalidity of the clause did not create a gap in the contract, nor did it risk invalidating the entire agreement.

Counterclaims admissible in model declaratory proceedings

It was previously unclear whether companies could file counterclaims in model declaratory proceedings to resolve factual and legal issues that are preliminary for potential consumer claims but were not – intentionally or unintentionally – raised by the consumer association. This was relevant in the present case because Berliner Sparkasse, relying on the views of legal scholars, argued in a subsidiary counterclaim that customers owed compensation for services received. The bank contended that, even if the fee adjustments were invalid, customers would not be entitled to reimbursement claims because they owed compensation for the services they had received.

The Federal Court of Justice rejected the compensation claims, ruling that the services were provided under valid contracts and therefore had a legal basis. At the same time, however, it also held for the first time that companies can file counterclaims in model declaratory proceedings, enabling them to defend themselves comprehensively and effectively.

Start of the knowledge-based limitation period not postponed

In view of its potentially broad impact, the third key question in the proceedings was whether the start of the limitation period was postponed at least until the Federal Court of Justice judgment in April 2021.

vzbv argued that this was the case because the Court of Justice of the European Union infers from Council Directive 93/13/EEC on unfair terms in consumer contracts that the start of the limitation period depends on the consumer’s knowledge of the law (see also Noerr News of 26 January 2024). The Federal Court of Justice rejected this view. Instead, it followed Berliner Sparkasse’s argument that a Union law-compliant interpretation is not appropriate here because the German legislature – according to the wording of section 199(1), no. 2 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and the legislative history – links the start of the limitation period to knowledge of the facts, not knowledge of the law. Additionally, the Federal Court of Justice decided that it was reasonable for customers to bring a claim even before the April 2021 judgment since the deemed consent clause had not previously been approved by the superior courts and its invalidity could be inferred from already established principles of general terms and conditions law.

As a result, the established rules of German limitation law remain unchanged: knowledge of the facts is sufficient to trigger the start of the limitation period. In this case, such knowledge existed once customers were informed about the intended fee changes and these fees were reflected in the account statements of their current accounts.

 

Noerr is a pioneer in defending against collective and mass actions. With a specialised team of over 50 lawyers in our Class & Mass Action Defence practice group, Noerr regularly advises clients on defending against capital investor model proceedings, model declaratory actions and representative actions as well as on defending against claims through structured litigation vehicles and in mass actions.