Unimplemented special conditions for mandate fees

A client contacted the Ombudsman because a reduction in mandate fees agreed with the bank had not been implemented for nearly 10 years. The bank admitted, but argued that the special conditions had been limited in time and that the client had accepted the statements for years without objection. It presented the client with a settlement offer including partial reimbursement and future benefits. The client did not agree with this and demanded the full reimbursement of the fees that, in his view, had been overcharged in the past. The Ombudsman drew the bank’s attention to the principles he applies in fee disputes and asked it to reconsider the case. The bank then increased its settlement offer. The Ombudsman submitted the increased settlement offer to the client and recommended that he accept it. The client left the Ombudsman’s letter unanswered. The case therefore had to be closed without mediation.

The client had maintained a business relationship with the bank for many years and was required to pay fees as part of an asset management mandate. According to his account, it had been agreed with the bank that he would be granted a discount on the regular mandate fees, provided he increased and maintained his deposits. He had fulfilled this requirement.

After almost 10 years, the client noticed that the mandate fees had always been charged at the regular rate. He argued that this was hardly apparent to him, as the fee statements were difficult to understand. He was of the opinion that the bank had never implemented the agreed special conditions and demanded the reimbursement of the fees that had been overpaid over the years. After first having contacted the bank directly and having considered its gesture of goodwill as insufficient, he requested mediation from the Ombudsman.

The Ombudsman contacted the bank and suggested a further gesture of goodwill. The bank apologized for the omission, but argued that the special conditions had originally only been agreed for a limited period and were subject to an annual review. Moreover, the client had accepted the statements regularly sent to him over a long period without objection. The statements are transparent and easy to understand. As a gesture of goodwill, the bank declared its willingness to retroactively reimburse the excessively charged fees for three years instead of just two, and to increase the discount for the next five years from 25% to 50%. She described this offer as final.

The Ombudsman examined the case taking into account the general principles regarding bank charges. He stated that fees are generally owed if they are agreed or customary. The bank charged fees that were too high compared to the agreement made, which it also admitted. It was disputed how long the agreement should remain in force. The bank stated that it had reserved the right to review the reduction annually. According to the client, such a review has never taken place. The fees were therefore charged at too high a rate for the entire period. It was clear to the Ombudsman that the client has an obligation to check and complain with regard to the fee statements. He considered the fee statements to be easily readable and transparent, contrary to the client’s claim. The long duration of the unchallenged charges could be interpreted as tacit approval. In addition, the limitation period of possibly only five years for the periodic fee claims had to be taken into account. Against this background, it appeared legally questionable whether the client could enforce a complete retrospective correction. The Ombudsman concluded that the improved settlement offer made by the bank after the intervention represented a balanced solution, taking into account the overall circumstances. He recommended that the client accept it, especially as further concessions within the framework of the ombudsman procedure did not appear realistic. As the client did not respond to this recommendation, the procedure unfortunately had to be closed without any investigation result.