Berliner Sparkasse succeeds with Noerr in model declaratory proceedings

Assisted by Noerr and Dr Reiner Hall, Berliner Sparkasse has successfully defended itself against a model declaratory action before the German Federal Court of Justice (Bundesgerichtshof – BGH). In its judgement of 3 June 2025, the Federal Court of Justice followed Berliner Sparkasse's legal argument that consumer claims for reimbursement of account fees are subject to a limitation period of three years. The action was brought by the Federation of German Consumer Organisations (vzbv).

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 the 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.

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.

Counsel for Berliner Sparkasse: Noerr

Hans Christian Kirchner (Partner), Tom Billing (Partner), Tobias Lühmann (Associated Partner, all Berlin)