DLA Piper successfully acts for ING on appeal of Toprekening claim

DLA Piper has successfully acted for ING on appeal of a claim instituted by Stichting Misrekening. In its judgment of 1 October 2013, the Amsterdam Court of Appeal ruled that ING did not mislead customers about the interest rate on its Toprekening. Stichting Misrekening had adopted the position that the Postbank (which was incorporated into ING) wrongly informed customers in 2008 and 2009 about the interest on its Toprekening. The Court of Appeal disagrees.

The Court of Appeal opined first and foremost that, in general, it is by no means a foregone conclusion that savers receive a fixed and relatively favourable interest rate on their savings without a time restriction applying, independent of the developments on the money and capital markets. The court agreed with ING’s defence that this was no different in the case of the Toprekening, since ING did not require the savers in question to park their savings in the Toprekening for a specific period of time; the savers were free to withdraw their savings at any time without having to pay a penalty.

Secondly, the Court of Appeal held that prospective savers may be expected to carefully read the conditions of a particular savings account and weigh the contents of those conditions against their own expectations of the savings product. Based on the information the Postbank provided about the Toprekening, the ‘average informed, cautious and observant consumer’ should have concluded that the percentages mentioned in the bank’s leaflets were variable percentages.

The Court of Appeal’s decision confirms the earlier dismissal of the claim by the District Court of Amsterdam and at the same time nuances certain statements made by the Netherlands Authority for the Financial Markets on this matter.

Paul Hopman, Léon Korsten, Dennis Apperloo and Ernst Gras assisted ING in this matter.