Higher Regional Court of Frankfurt am Main: Bank not liable for customer's legal fees following suspicious money laundering report
In its recent ruling by the Higher Regional Court of Frankfurt am Main on February 25, 2025, the court had to decide whether a bank customer’s legal fees had to be borne by the bank after the bank reported suspicious transactions to the Financial Intelligence Unit (FIU) and refused access to their money. The Higher Regional Court sided with the bank and decided that the bank was not obliged to bear the legal fees in connection with the suspicious money laundering report in the case in question (10 U 18/24).
Reasons for the suspected money laundering report
The plaintiff opened her current account with the defendant bank in May 2008 and stated that there could be transfers and credits in the 6-digit range due to an inheritance. The transactions on the account were inconspicuous until the summer of 2023. A credit note of over €300,000 was then received and a few days later a further credit note of around €700,000. The bank subsequently reported the account to the Financial Intelligence Unit (FIU) due to the conspicuous incoming payments and denied access to the account balance.
Course of proceedings
The customer wrote to the bank to request the release or payment of the account balance, but without success. After switching accounts to another bank, the bank transferred the amount of approximately €400,000 to the new account during the legal dispute at first instance. The regional court ordered the bank to transfer the remaining funds to the customer and to reimburse the legal fees. The bank now appealed against this and was successful before the Higher Regional Court.
Reasons for the decision of the OLG Frankfurt a.M.: no damage caused by delay
As the bank was neither in default nor in culpable breach of duty at the time the lawyer was instructed, the customer could not demand reimbursement of the lawyer’s fees.
Banks are obliged under Section 43 GwG to report suspicious and conspicuous transactions as well as facts that indicate that the money could originate from a criminal offense to the Financial Intelligence Unit (FIU). In accordance with Section 47 GwG, these suspicious transaction reports must be made without the knowledge of the customer. The transactions listed in the suspicious activity report may then not be forwarded for up to three days until the FIU allows this.
Although the bank could have carried out the transaction again after the third working day instead of waiting another two days, this was not negligent according to the OLG and agreed to the waiting period as a reaction and reflection period due to the high amount of money involved and the liability risk.
What is the Financial Intelligence Unit (FIU) anyway?
The Financial Intelligence Unit (FIU) is the central reporting office in Germany for suspected cases of money laundering and terrorist financing, explains attorney Sascha C. Fürstenow. It receives reports from banks, for example, when suspicious money movements are registered, analyzes them and forwards relevant information to law enforcement authorities. Organizationally, the FIU is part of the General Customs Directorate and reports to the Federal Ministry of Finance. Its tasks and powers are primarily derived from the Money Laundering Act (GwG), in particular Section 27 GwG. In addition, regulations from the Customs Administration Act and – depending on the case – from the Fiscal Code (AO) and the Code of Criminal Procedure (StPO) apply. European directives and international standards, such as the requirements of the Financial Action Task Force (FATF), also have a significant impact on the work of the FIU.
From a liability perspective, reports to the FIU do not even have to be lawful
It was also not relevant here whether the report was lawful, as Section 48 of the AMLA exempts the person making the report from civil liability, unless the report was made intentionally or due to gross negligence. In this case, the OLG ruled that there was no deliberate or grossly negligent false report.
What bank customers can do to avoid suspicious activity reports
Attorney Fürstenow has already written an article on how to avoid falling under the scrutiny of the bank’s money laundering department.
In this case, the suspicious activity report or the hold on the account balance could have been proactively avoided if the customer had submitted proof of the origin of the incoming payments to the bank before the credit was received or shortly afterwards. A bank statement from the sender is often sufficient, where it is clear where the money comes from, for instance through the receipt of wages and salary.
Nevertheless, the bank’s approach should also be appropriate to the circumstances. The bank could, but did not have to, have taken other measures to determine the origin of the funds: either by contacting the money laundering department of the third-party bank from which the funds originated or by asking the customer to provide evidence of the origin and setting a corresponding deadline. In this case, the customer had been inconspicuous and not suspicious for years and the bank could have resorted to milder means. Attorney Fürstenow therefore recommends that bank customers provide the bank with proof of origin before making a payment or suspicious transfer in order to avoid disputes, account blocking and costs.
The legal advice was prepared by Ms. Dastan, an employee of the FÜRSTENOW law firm, and professionally reviewed and finalized by Attorney Fürstenow.