The German Federal Government has commissioned a study on dormant assets (final report for the Federal Republic of Germany, represented by the Federal Ministry of Education and Research, prepared by Schalast Partner und Rechtsanwälte mbB, Frankfurt am Main April 30, 2021, legal opinion on the possible transfer of funds from dormant accounts to a newly established Social Impact Fund – the download of the study will soon be available on this page). Further information can also be found on the website of the Social Entrepreneurship Network Germany (SEND).

This federal study shows that the German savings banks have not sufficiently fulfilled their obligation to keep records of dormant assets and thus also of expropriated Jewish bank deposits (so-called “dormant accounts”); in this regard, all possible communication channels must be used by a bank to locate descendants of account holders who are entitled to inherit. It can be assumed that there are still several billion euros in “dormant accounts” in Germany.

The study reveals that only 9 percent of the savings banks surveyed reported dormant assets (p. 33, N130).

The reference on p. 55, N11 of the Federal Study is also significant: “Property within the meaning of Article 14 of the Basic Law comprises all pecuniary rights that are assigned to the individual by the legal system and grant him or her a private right of use and disposal. The constitutional concept of property thus goes beyond the concept of property under civil law and, in particular, does not only extend to property in objects. Non-negotiable assets, in particular account balances and securities accounts and the like, therefore fall under the concept of property under Article 14 of the Basic Law.

p. 60, N26 of the Federal Study: At national level, there is only one decision of the Federal Fiscal Court (“BFH”) to date that addresses the concept of “unmoved” accounts in tax accounting law. This is linked to the characteristic of account movement. However, the decision concerns the question of the obligation to recognize liabilities and comes to the following conclusions:

1. a credit institution may no longer recognize as liabilities savings balances that are almost certainly no longer claimed.

2. there is no empirical principle that all liabilities from 30 or more years of unmoved savings accounts must be derecognized.

On the other hand, there is also no empirical principle that all claims from savings accounts that have not been moved for less than 30 years will not be asserted.

In other words, a credit institution “may” only derecognize income when it is “almost certain” that the corresponding credit balances will “no longer be claimed”. At the same time, however, there is no empirical record that 30 years would be sufficient for this.

p. 62 ff. N231 / N232 / N236 of the Federal Study: It would not be in the interests of the interests to transfer such assets to a social impact fund after 10 years due to dormancy via the sponsoring institution if a simple attempt by the institution to contact the account holder would have been possible without further ado. The term “dormant” also presupposes the absence of a message, i.e. a contact, according to its very wording. In this respect, the term “dormant” could be linked to the fact that the institution has lost contact with the beneficiaries and is also unable to re-establish this contact. The type and number of attempts to contact the last known account holder or the method used to locate the account holder could be relevant for the affirmation or denial of this characteristic.

Assets could be considered dormant if no transaction or communication has taken place within the last 10 years and the institution has made an initial but unsuccessful attempt to re-establish contact with the customer and has exhausted all reasonable communication channels.

In connection with this federal study, there are currently attempts by the savings banks under the Freedom of Information Act (IFG) NRW to no longer have to report on personal accounts. However, the experts consulted reject these changes to the IFG NRW.