In a decision of 7 July 2015 (AZ: VI ZR 372/14), the Federal Court of Justice (Bundesgerichtshof - BGH), had to deal with a bank client (plaintiff) who had entered into an asset management agreement with two Liechtenstein domiciled companies. At the same time, the plaintiff signed an application for the opening of an account and a custody account with the defendant, a Swiss financial institution (without any subsidiary, branch or representative office in Germany and with no BaFin license to conduct banking business in Germany). After no investments were made with the deposited money until the end of 2009, the defendant upon request of the plaintiff, paid back the remaining balance on the account (which was less an administrative fee which had been charged by the asset manager in advance). The plaintiff had claimed the “gap” amount according to § 823 (2) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), arguing that the defendant had carried out a banking business in Germany without the necessary license according to § 32 (1) sentence 1 of the German Banking Act (Kreditwesengesetz - KWG).
The BGH finally decided that the claimed damage does not fall within the scope of the protective purpose (Schutzbereich der Norm) of § 32 (1) KWG since the license requirement in terms of § 1 (1) sentence 2 number 1 KWG does not aim to prevent the bank’s client from executing loss-bringing investments from the deposit account or performing any other contracts which are not under the bank’s responsibility.