Eight banks in Germany still show negative interest rates in their price notices on the Internet. This is the result of a comparison by the Internet portal Verivox, which is exclusively available to the F.A.Z. in advance. These include, among others, some cooperative banks; In some cases, however, according to their own statements, the institutions have not yet changed their price notices, although in practice they have long since ceased to charge negative interest rates. "Since mid-September 2022, we have no longer charged negative interest rates," said a spokesperson for fintech Tomorrow, which is one of the last remaining on the Verivox list. According to Verivox, the number of banks in Germany that take negative interest rates from customers has already fallen from more than 400 to zero, somewhat behind the ECB's interest rate hikes. However, there is still a fierce dispute in several courts about a possible repayment of negative interest.
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Even after the end of negative interest rates, there is still a lack of clarity as to who was actually allowed to take negative interest rates from whom where and when – and who may have to pay money back. 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. In some cases, such contracts date back to before the financial crisis, i.e. well over 15 years.
Lower limit not provided for
At that time, hardly any of the participants could have imagined that there could one day be a negative value of reference interest rates. However, it was precisely this constellation of interest rate escalation clauses that 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 bank and NRW had agreed on five promissory note loans of 100 million euros. The interest rate clause was based on the three-month value of the Euribor. There was no provision for a lower limit in the Treaty. From March 2016 onwards, the reference interest rate was negative. From then on, Düsseldorf took the view that the obligation to pay interest was reversed; in the end, the Ministry of Finance claimed around 160,000 euros from DZ Hyp.
This is not an unusual demand: Other comparable cases against banks are pending at the Federal Court of Justice. Baden-Württemberg has also sought two lawsuits against lenders. In its ruling, the Eleventh Civil Senate made it clear that if loans incur negative interest rates, banks do not have to pay them (F.A.Z. of 10 May). The state of North Rhine-Westphalia, as the borrower, remains contractually obliged to pay interest. A reversal of the cash flows, as argued by the plaintiffs' lawyers, is ruled out. According to the legal sense, interest is the remuneration to be paid for the temporarily provided capital and which 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 calm will return after the decision for the banks. 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 becomes negative, says Stephan Bausch, a banking lawyer at the Luther law firm. On the other hand, the supreme court has not yet decided whether lawsuits by consumers or companies against banks in connection with "negative interest rates", also known as "custody fees", to be paid by customers for bank deposits, could be successful.