(Federal Court of Justice, judgments of 4 July 2017 – XI ZR 562/15, XI ZR 233/16)
On 4 July 2017, the Federal Court of Justice (Bundesgerichtshof – BGH) ruled invalid the general terms and conditions (Allgemeine Geschäftsbedingungen – AGB) pre-formulated by the defendant banks in loan agreements concluded between credit institutions and entrepreneurs (Unternehmer) for processing fees (Bearbeitungsgebühren), that did not depend on the term period.
I. Main facts of the judgments
In both court proceedings, the borrowers (a real estate project developer and a real estate investor) were to be regarded as entrepreneurs within the meaning of Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). The loan agreements concluded with the banks contained a form clause which stipulated that the borrower had to pay a processing charge (“Bearbeitungsentgelt”) or a processing fee (“Bearbeitungsgebühr”) irrespective of the term period.
Both borrowers had sued the banks for repayment of this charge because they deemed the clauses invalid. While the action in proceedings XI ZR 562/15 was successful in the lower courts (OLG Celle / LG Hanover), the action in proceedings XI ZR 233/16 was rejected by the lower courts (LG Hamburg / OLG Hamburg).
http://www.dsc-legal.com/en/news/news-details/processing-fees-for-bank-loans-paid-by-entrepreneurs-are-also-invalid.html