Collective consumer protection is now also one of the tasks of financial regulation.
(Photo: imago images/Schöning)
frankfurt For about eight years, Bafin, the financial regulator, has been responsible not only for the regulation of banks, insurance companies and financial markets, but also for collective consumer protection. An expert opinion commissioned by the Federation of German Consumer Organizations (VZBV) has now concluded that Bafin’s powers should be defined more clearly and comprehensively in the law in order to better protect consumers.
“For example, Bafin must always be able to intervene when a consumer center wins a judgment in court. The goal must be that Bafin can also demand reimbursement of illegal costs from suppliers,” demanded VZBV board member Ramona Pop.
The report was created by Peter Rott and is available to Handelsblatt. He is a professor of civil and commercial law at the University of Oldenburg and a member of the Bafin Consumer Advisory Council.
Roth cites, among other things, a judgment of the Frankfurt Administrative Court. This overturns Bafin’s ban on charging negative interest following objections from suppliers, as the decision of the Federal Court (BGH) is still pending and must be considered by Bafin (Az. 7 K 2237/20.F).
However, according to VZBV experts, the legal opinion that Bafin always has to wait for the BGH’s decision is problematic, since legal disputes between companies and consumers often end in settlements. In doing so, the bank would have the opportunity to “undermine not only the Supreme Court’s clarification of legal issues, but also Bafin’s enforcement of the law,” experts said.
Consumer claims may be subject to statute of limitations
The second example concerns the general decree of Bafin Premium contract. For example, in June 2021, the regulator is obliged to inform all affected consumers that the interest rate adjustment clause contained therein is invalid, in order to assure them of subsequent interest calculations or to provide an amended contract.
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More than 1,100 credit institutions disputed it. The Administrative Court still needs to clarify the matter. Meanwhile, consumer claims may be barred by law. For this reason, experts have called for the statute of limitations of Bafin’s order.
Bafin himself reassured: “The judgment of the Frankfurt am Main Administrative Court has not yet been finalized. It is therefore premature to use this as an opportunity for a legislative initiative,” said Handelsblatt’s Bafin spokesman. The paradoxical suspension effect is also “a general principle of law, not a particularity of Bafin’s regulatory law”. “From our perspective, the two cases mentioned do not give any reason – at least for now – to pursue the possibility of expanding enforcement,” a Bafin spokeswoman said.
A spokesman for the Federal Finance Ministry also told Handelsblatt that there were no changes to the law regarding additional legal action and enforcement options and the Bafin Act (FinDAG).
Experts from Bafin and the VZBV seem to agree that cooperation in collective consumer protection should be strengthened. However, a Bafin spokeswoman disputed the report’s suggestion that Bafin’s confidentiality obligations to VZBV should be lifted, noting that confidentiality obligations are governed by EU law.
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