In a ruling of 29 September 2020 (Ref.: 5 U 165/19), the OLG Jena dealt with the question of whether and under which conditions an extraordinary termination option exists if the bank suspects misuse of the loan proceeds, in particular for money laundering.

According to the court, the extraordinary termination in such a case could be based on no. 26 para. 2 of the GTC-Savings Banks (= no. 19 para. 3 GTC-Banks), or § 314 BGB. The prerequisite is a suspicion of money laundering within the meaning of section 261 of the Criminal Code, which is based on a multitude of unusual circumstances at the time of the notice of termination and which objectively could have existed. According to the court, there is no doubt that a criminal offence under section 261 of the German Criminal Code (StGB) constitutes good cause for extraordinary termination under section 314 of the German Civil Code (BGB) – this applies irrespective of the standard examples listed for good cause in the savings banks’ GTC, which do not expressly include suspicion of money laundering. Moreover, recital 33 of the Consumer Credit Directive, which according to the literature also covers money laundering, also speaks in favour of the suspicion of money laundering as a sufficient reason for termination.

What is required is an initial suspicion, which results from concretely recognisable indications. These can be, for example, a conspicuous handling of financial transactions or a deviation from normal business conduct. The given indications are said to suggest that the origin of illegal assets is to be concealed or, for example, that access to illegal funds by the law enforcement authorities is to be avoided through transactions, so that a background corresponding to Section 261 of the Criminal Code cannot be ruled out. In this respect, there was a certain margin of appreciation when assuming the initial suspicion.

If there is a suspicious case that has to be reported according to the GWG, a sufficient reason for termination is to be indicated in any case. The bank could not reasonably be expected to continue the business in this situation. Neither the expiry of the prohibition period pursuant to § 11 para. 1 a GWG a.F. nor a discontinuation of the preliminary proceedings according to § 170 para. 2 of the Code of Criminal Procedure precludes the extraordinary dismissal. The latter does not change the fact that the bank actually had reasonable suspicion. For this purpose, the ex-ante view was decisive, i.e. not the view “in retrospect”, but the view at the time the suspicion was founded.

The ruling of the OLG Jena could lead to more legal certainty in the future when terminating corresponding legal transactions. We will of course continue to follow developments in the area of dismissal on suspicion of money laundering for you.

If you have any questions on this topic, we will be happy to advise you.

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