The capital market is not only dynamic, but also extremely complex. On the one hand, new financial products are constantly being created and, on the other hand, there are numerous consumer protection regulations that are intended to regulate trading in securities and protect the consumer. Consumers and entrepreneurs are dependent on competent advice from their bank and often give it a vote of confidence.
The banks have legal consulting resources that bank customers cannot access. Unfortunately, this imbalance often leads to customers not being sufficiently informed about possible risks. They purchase financial products that they would not have bought if they had received sufficient advice. In these cases it is necessary to reclaim the damage incurred from the banks as quickly as reasonably possible.
In order to balance the balance of power, we are at your side as lawyers for banking law and help you to assert your interests in an economically sensible way. We will be happy to help you with any questions you may have in dealing with your bank or investment advisor, and are available to assist you in the event of losses that have occurred.
News
15.02.: General Contract Law – Limits on the Scope and Comprehensibility of General Terms and Conditions in Internet Payment Transactions
In a ruling of 19 February 2020 (Az. 6 U 184/19, ZIP 2020, S. 2057 ff.), the Cologne Higher Regional Court dealt with the effective inclusion of general terms and conditions in the internet-based procedure for cashless payments in electronic commerce. The applicant, a consumer protection association, brought an action for an injunction against the defendant, a globally active online payment service with about 200 million commercial as well as private users. There was unfair trading pursuant to §§ 3, 3a, 5 para. 1 p. 2 no. 3 and no. 7 of the Unfair Competition Act (UWG) in conjunction with section 305 (1) of the UWG. 2, § 307 para. 1 p. 2 BGB (German Civil Code). The terms of use of the payment service provider would, according to the plaintiff, create the false impression that they were effectively included when the contract was concluded. This constitutes an infringement of the principle of equal treatment as set out in § 305 para. 2; 307 para. 1 sentence 2 of the German Civil Code (BGB).
30.11.: Wirecard AG – Update
Following the opening of Wirecard’s insolvency proceedings, Wirecard AG alone, the financial services provider’s core company, has a total of around 12.5 billion euros in receivables that have been entered in the insolvency table. There are also high receivables from the other Wirecard companies. The auditors working at the time are to make a statement on this before the Bundestag.
The asset manager DWS is claiming over 600 million euros of the sum. However, as things stand today, it is not expected that DWS and the other creditors will receive a high quota during the insolvency proceedings.
16.11.: Big trouble over savings contracts and ineffective interest rate adjustment clauses – What back payments and rights you could be entitled to as a consumer
It had long been known that savings banks in Lower Saxony, among others, were terminating masses of high-interest savings contracts and pressuring consumers to terminate their contracts. Linked to this debate was the issue of ineffective interest adjustment clauses, which could entitle consumers to back payments of up to €4,600 (in individual cases). Now the problem has also arrived in NRW; more and more banks are discovering savings contracts with ineffective interest rate adjustment clauses. We have compiled an overview of common clauses for you here.
Savings contracts?
Savings contracts have been offered to bank customers as instalment savings contracts with monthly savings rates since the mid-1990s. A large number of savers have taken advantage of this savings opportunity and concluded savings contracts (e.g. Scala, Bonus Plan, Premium Savings Flexible, VorsorgePlus, Pension Savings, Wealth Plan, VR Future, Pension Plan). The interest rate on the contracts is much higher than for products offered in the current low-interest phase.
During the low-interest phase, this type of high-interest contracts became a burden for the banks. Thus, more and more credit institutions and savings banks tried to cancel or terminate these savings contracts. Savings banks, for example, advertised new savings contracts at new, more advantageous conditions and tried to terminate or cancel the old contracts.
In particular, banks are trying to terminate premium savings contracts. These contracts have one thing in common: low variable savings interest rates, which are to be offset by fixed, rising premiums as the term increases.
09.11.: The digital security – capital market 2.0?
In order to modernise securities law, a draft bill was published on 11.08.2020 which no longer requires the securitisation of securities in future. The proposed law on the introduction of electronic securities (Gesetz zur Einführung von elektronischen Wertpapieren – eWpG) will initially only apply to bonds, i.e. bearer bonds, but in the future it is planned to introduce other electronic securities such as digital shares.
This should now also mean an important step towards digitisation for Germany. In other countries the electronic issue of securities is already possible. Damit auch Deutschland weiterhin einen attraktiven Finanzplatz darstellt, soll auch hierzulande demnächst die Digitalisierung weiter fortschreiten.
19.10.: Ways out of property financing
No early repayment fee in case of insufficient information on the calculation of the VFE
Anyone who terminates their property financing prematurely must regularly pay a so-called prepayment penalty. Consumer protectors have been doubting the legality of the amount of compensation for a long time and have only recently been confirmed in their assessment by a recent judgement of the OLG Frankfurt, Ref.: 17 U 810/19.
What was the disputed case about?
The defendant – a Frankfurt credit institution – had previously charged the borrower an early repayment fee. He now defended himself in court and was upheld by the Frankfurt Higher Regional Court in the second instance. In the contested case, the defendant infringed its legal obligations to provide information. Thus, at no time was the borrower under any obligation to pay the early repayment penalty and the sums already paid could be recovered.
24.09.: Wirecard – Committee of enquiry
In the Wirecard case, a committee of enquiry of the German Bundestag is to examine the case in more detail this autumn. Due to the increasing number of cashless transactions and therefore the considerable impact of the financial scandal on the population, a committee of enquiry was necessary to clarify the case thoroughly and completely.
The Munich public prosecutor’s office is currently investigating Wirecard for commercial gang fraud, after air bookings of 1.9 billion euros were uncovered in June. It is assumed that the payment service provider has been reporting fictitious profits since 2015. The focus here is not only on Wirecard itself, but also on the responsibility of various state institutions accused of failing in connection with the Wirecard affair.
01.07.: Wirecard – Insolvency
Just a few weeks ago, the Wirecard share was still quoted at 140 euros. In the meantime, however, their price has fallen to approximately one euro. Now the Munich Local Court has opened the preliminary insolvency proceedings on 29.06.2020 (Ref.: 1542 IN 1308/20).
What happened?
Der Skandal um die Aktie beginnt bereits am 30.01.2019 durch einen Bericht der Financial Times [1]. A top-ranking employee of the company reported there on money laundering and falsified contracts. Shareholders and contract partners then became aware. In den USA wurden daraufhin bereits 2019 die ersten Schadensersatzforderungen von Aktionären eingereicht [2] und auch Wirecard selbst reichte gegen die Financial Times Klage ein [3]. But here in Germany, the scandal has so far barely attracted the attention of the press. This changed, however, when it became known that about a quarter of the company’s balance sheet total (approx. 1.9 billion euros), according to the company’s own statements, “with a predominant probability never existed”. (Criminal) investigations are now also being conducted in this area, among other things for balance sheet fraud and market manipulation.
As a result, the company filed for insolvency only last week on 25.06.2020. To date, it is not yet known whether subsidiaries such as Wirecard Card Solutions Limited (known for its “boon” payment procedure for smartphones and Smartwatches) will also follow suit.
Investors, shareholders and proprietors of other claims should therefore inform themselves immediately about possible claims for damages. As a law firm specialized in banking and capital markets law, we already represent investors in these matters and have also successfully represented the economic and legal interests of our clients in other investor protection proceedings in the past.
