Fee clauses in the general terms and conditions of Riester building-society savings contracts which provide for an annual administration fee (annual fee) are subject to scrutiny of the content of general terms and conditions and are invalid in dealings with consumers pursuant to Section 307(1), first sentence, para. 2, no. 1 of the German Civil Code (BGB). Neither the provisions of the Pension Schemes Certification Act (AltZertG) nor the approval of the tariff structure by the Federal Financial Supervisory Authority (BaFin) preclude judicial review.
The claimant, the Federal Association of Consumer Advice Centres and Consumer Organisations, brought a collective action challenging two clauses in the general terms and conditions of the defendant Landesbank.
In its General Terms and Conditions for building society savings contracts with consumers (the ‘Classic Riester’ tariff, as at 2012, and the ‘Wohn-Riester’ tariff, as at 2022), the defendant included clauses in each case providing for an annual administration fee.
The clause in the ‘Classic Riester’ tariff provided for an annual fee of EUR 15 both during the savings phase and during the loan phase, whilst the clause in the ‘Wohn-Riester’ tariff provided for an annual administration fee of EUR 24 only during the savings phase. The claimant considered both clauses to be unreasonable and lacking in transparency. For this reason, he brought an action seeking an order that the defendant refrain from using these provisions in its general terms and conditions or from relying on them.
The Frankfurt am Main Regional Court, which initially heard the case, dismissed the claim. The Frankfurt am Main Higher Regional Court upheld the decision on appeal. The claimant then pursued his claim for an injunction before the Federal Court of Justice (BGH) in appeal proceedings.
In contrast to the lower courts, the BGH ruled in favour of the claimant and ordered the defendant to refrain from including the provisions at issue – or provisions with the same content – in building society savings contracts for retirement provision concluded with consumers, or from relying on them in existing contracts. In the BGH’s view, the fee clauses are subject to judicial review of their content and are invalid in dealings with consumers pursuant to Section 307(1), first sentence, and (2)(1) of the German Civil Code (BGB).
The Federal Court of Justice (BGH) first confirmed the view of the lower courts that the contested clauses are subject to the substantive review of general terms and conditions. The decisive factor here is their classification as so-called ancillary price agreements. Under Section 307(3), first sentence, of the German Civil Code (BGB), only those terms and conditions that contain provisions deviating from or supplementing statutory provisions are subject to content review. Clauses which directly determine the price of the main contractual service or set the remuneration for an additional special service not regulated by law (so-called ‘price clauses’), on the other hand, are exempt from review.
The building society’s principal service during the savings phase – that is, the period during which the saver builds up their savings balance – consists of the payment of interest on the building society savings balance and of providing the saver, upon payment of the building society deposits, with a claim to a low-interest building society loan from the allocation fund (Section 488(1), second sentence, of the German Civil Code (BGB); Section 1(2) of the Building Society Act (BauSparkG)).
The annual fees, on the other hand, cover general administrative activities such as the administration of building society contracts, the management of the building society collective and the management of the allocation fund, which the building society carries out not on a contractual basis but on a statutory basis pursuant to Sections 6 and 6a of the BauSparkG. Since the fee clauses therefore do not constitute consideration for a service provided by the building society to the contracting parties, but rather pass on administrative costs to customers which are incurred predominantly in the building society’s own interest, they are to be classified as ancillary price agreements subject to regulatory scrutiny.
Nor does the fact that BaFin, as the supervisory authority, has examined and approved the building society’s tariff structure does not, in the view of the Federal Court of Justice (BGH), preclude judicial review of the clauses, as BaFin’s review is specifically geared towards taking into account the particular features of the building society contract and the provisions of the Building Societies Act. Nor does the AltZertG lead to an absence of scrutiny. This Act merely specifies which types of costs are permissible in Riester contracts and serves to ensure comparability between different providers.
The Federal Court of Justice (BGH) then emphasised – in contrast to the lower courts – that the clauses unreasonably disadvantage the defendant’s contracting parties. They deviated from a fundamental principle of loan law and thus from the legal model set out in Section 488(1), second sentence, of the German Civil Code (BGB): a building society may not pass on to its customers, via separate charges, the costs of activities which it carries out predominantly in its own interest. This applies to both the savings phase and the loan phase. During the loan phase, the provision of capital is one of the building society’s principal obligations, and the term-dependent interest also serves to cover internal costs associated with the provision of capital. The annual fee, on the other hand, serves to cover administrative costs which are incurred predominantly in the building society’s own interest.
Nor can any specific regulatory model for Riester building society savings contracts, which deviates from general loan law, be inferred from the AltZertG. The fact that the Act mentions administrative costs as a type of cost (Section 2a, sentence 1, no. 1 of the AltZertG) does not mean that the legislature approved the substance of a corresponding fee clause. In the BGH’s view, the provision serves merely to ensure cost transparency – but not to legitimise such fees.
The BGH expressly left open the question of whether the clauses also contravene the transparency requirement (Section 307(1), second sentence, of the German Civil Code (BGB)), as this did not need to be decided given the established invalidity.
The decision has significant implications for the building society sector. The BGH makes it clear that neither the provisions of the AltZertG nor the BaFin’s approval of the tariff structure exempt a fee clause from judicial review of its content. Building societies cannot rely on Section 2a of the AltZertG as justification for charging annual fees when drafting their general terms and conditions for pension products.
The ruling fits seamlessly into the Senate’s existing case law on account fees in building society savings contracts and now expressly extends those principles to Riester building society savings contracts as well. Affected building society savers should check whether they can reclaim any annual fees already paid. In doing so, particular attention should be paid to the limitation period, which may preclude a successful claim for reimbursement in individual cases.
(Federal Court of Justice, judgement of 28 July 2026 – XI ZR 83/25)
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