Refund of excessive loan processing fees (OGH 23.10.2025, 2 Ob 52/25y)

Created by Mag. Sylvia Unger |
Civil Law , Contract Law , General Terms Of Contract

1. Facts of the case

The plaintiff (consumer) took out a loan of €695,000.00 from the defendant bank. In the loan agreement, the contracting parties agreed on the payment of a one-time, term-independent “processing fee” of €20,850.00, which the borrower also paid. The borrower demanded repayment of the processing fee on the grounds that it was non-transparent and grossly disadvantageous. The defendant bank argued that loan processing fees were customary in the market and permissible under the case law of the Supreme Court.

Digression: When is a clause non-transparent or grossly disadvantageous?

  • A clause is considered non-transparent within the meaning of § 6 (3) KSchG if it is unclear or incomprehensible to the consumer. This may be the case, for example, if vague terms are used or no reference is made to legal consequences.

  • A clause that does not specify one of the two main services is grossly disadvantageous within the meaning of § 879 (3) ABGB if, taking into account all the circumstances of the case, it grossly disadvantages one party to the contract (so-called “Inhaltskontrolle”, meaning “content review”). The consequence of gross disadvantage is the invalidity of the respective clause. 

 

2. Findings of the Supreme Court (OGH)

The Supreme Court first noted that the specific agreement was a unilaterally pre-formulated contract text, which had to be measured according to the transparency requirement under § 6 (3) KSchG and the prohibition of gross disadvantage under § 879 (3) ABGB.

The Supreme Court ruled that there was no violation of the transparency requirement. The loan agreement provided sufficient detail as to why and for what purpose the processing fee was charged and used.

With regard to the prohibition of gross disadvantage, the Supreme Court first assessed whether the processing fees constituted a primary obligation. In previous decisions, the Supreme Court had affirmed this, with the result that content review could not be applied. However, it is now established case law that additional fees serving to compensate for contractually agreed services are subject to content review pursuant to § 879 (3) ABGB.

The Supreme Court held that it was permissible for the bank to charge a flat-rate additional fee for processing costs, as long as this did not “grossly exceed” the specific actual costs to be expected for the provision of this service. In the present case, the Supreme Court ruled that there had been a gross exceeding of the bank's actual costs. Due to the invalidity of the clause, the Supreme Court ordered the defendant bank to repay the processing fees.

 

3. Conclusion

Processing fees are generally permissible and do not have to correlate exactly with the costs of the actual expenditure. However, they must 

  • be clearly and comprehensibly formulated and 

  • may not grossly exceed the actual expected costs.