The clients intended to emigrate and were surprised by the Corona pandemic in the planned country of emigration in South America. According to their statements, they were unable to return to their original residence in Europe for about one and a half years, where to the bank had sent the information about the new fees. The clients claimed that because of their personal situation, they had switched to electronic delivery of correspondence and had been in regular contact with their relationship manager by e-mail and telephone. The client advisor had known that they had been blocked in South America and that they had therefore not been able to obtain knowledge of the information about the new charges, which had only been sent to their original place of residence. However, they had not been informed of this by their relationship manager. The clients’ total fee burden was increased about tenfold by the newly introduced fees for wealth management services. Given their modest bank balance, this obviously made it too costly to continue their banking relationship.
When the clients contacted the Ombudsman, they had already complained to the bank four times and demanded a refund of the fees. Two of the complaints went unanswered. In their last complaint, they pointed to a new ruling in their original country of residence, according to which fee adjustments are subject to very strict conditions.
In its replies to the clients, the bank explained that it had had no knowledge that they would voluntarily extend their holidays in South America. It would have been up to them to notify it of the new address. The notification of the new charges had been qualified internally to the end that it could only be delivered physically and not electronically. The bank was of the opinion that the notification was valid and refused a refund. It referred the clients to the Ombudsman in case they wanted to stick to their claim.
The Ombudsman was somewhat surprised at the way the client complaint was handled and asked the bank to look into the case again. He considered it plausible that the clients had not in fact become aware of the new fees. It was not clear from the bank’s replies to the complaint whether the relationship manager, who according to the clients’ account had known their exact circumstances, had been involved in the clarifications necessary for the reply. In the Ombudsman’s view, this was peculiar, since the fees complained of were intended to compensate for wealth management services and thus for a fundamentally high level of individual service.
The bank implicitly invoked the so-called assumption of approval for the valid introduction of the fees, i.e. it claimed that the delivery of the corresponding information to the last known address of the clients was valid, as they had not notified the bank of a new address. The new fee had not been objected to in time. It was therefore deemed to have been approved. Fictitious approvals are common in banking and are very important. However, the Ombudsman advised the bank that approval fictions are subject to the prohibition of abuse of rights. In the Ombudsman’s view, if the bank actually knew that the clients in South America were blocked and could not take note of the physically delivered letter, it was not admissible to invoke the fictitious approval. Moreover, the bank could not reasonably assume, based on the specific circumstances, that the clients would have agreed to the new fees if they had been informed of them. Finally, the Ombudsman could not understand why the information about the new fees was not at least additionally sent electronically, as had been agreed for correspondence with clients.
Finally, the Ombudsman regretted that the bank did not show a little more empathy in dealing with the complaint, given the situation described by the clients, which unfortunately affected many people during the Corona pandemic.
In its statement to the Ombudsman, the bank did not see any errors in its approach to the introduction of the new fees and reiterated that the charges had been made correctly. However, it nevertheless agreed to refund the amount demanded by the clients.