Rabobank called back for increase in storage

In a recent ruling, Rabobank was called back by the court for raising the storage rates. An important statement that can have far-reaching consequences in practice, says lawyer Marianne Adema.

In recent years it has often happened that banks increased the surcharges without sound grounds or motivation. Various customers whose interest rate swap has ended have also had to deal with a mark-up increase without further motivation. In practice, I regularly get the question whether the bank may just increase a surcharge, and what can be done about this.

Rabobank called back
The judgment of 14 March 2018 concerned a customer with several buildings on which business financing had been provided. Rabobank had provided several loans based on variable interest (Euribor). Due to the fall in the value of the customer's real estate, the bank wanted to increase the customer's surcharge. The surcharge increase was unilaterally imposed on the customer by Rabobank invoking a provision stating: "The bank can always change the surcharge". This provision was stated in Article 25 of Rabobank's General Terms and Conditions for Corporate Financing (2010 version).

The judge made short work of the raise. Rabobank had exceeded the limits of its contractual authority. Rabobank should first have obtained relevant information about the customer's situation and the property. Rabobank should also not have simply invoked a changed policy vis-à-vis the entire sector. It is remarkable that the court indicated that since the bank had failed to obtain this information prior to the increase in the surcharge, the bank was not allowed to increase the surcharge with retroactive effect by still collecting this information. Rabobank was ordered to repay the overpaid interest to the customer.

Importance for entrepreneurs
This ruling is important for entrepreneurs because the judge sets limits on the option that the bank has to simply increase the surcharge. Other banks also regularly invoke a comparable article in the offer or the general terms and conditions, which state that they can "always" increase the surcharge. It is known that Deutsche Bank is also making it very difficult for its last SME customers, who have not yet left, in this way.

Duty of investigation and duty of motivation 
In this ruling, the judge emphasizes that the authority to change the surcharge is limited by the duty of care that the bank has towards the customer, as laid down in Article 2 of the General Banking Conditions. This limitation consists in that before increasing the surcharge, the bank must first obtain information about the customer, including information about the financial situation and any details regarding the personal circumstances.

In addition, the bank must also collect data from its banking policy and/or regulations, because these are allowed to play a role. In short, even if the bank has broad authority to change the surcharge, the bank must collect information on which it bases the change and communicate the outcome to the customer in a clear and motivated manner. The indiscriminate increase of the surcharge because the contract offers this possibility is therefore not allowed.

Has the bank also increased the storage rate for you? In that case, ask the bank for a written motivation, check it for accuracy and completeness and, if necessary, engage an adviser.

Marianne Adama

Marianne Adema is a lawyer at Adema Advocatuur and Advice. She specializes in financial law, agricultural law and real estate law. Adema assists many agricultural entrepreneurs and has an advisory and litigation practice. She is also a legal advisor on various wind turbine projects.

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