European justice supports judges reviewing mortgage opening commissions

Entrance to the TJUE.Reuters

New disavowal of the Court of Justice of the European Union (CJEU) to the Spanish Supreme Court on account of mortgage contracts. The magistrates of Luxembourg have responded to the Spanish that the judges can examine the opening commissions that banks charge when a mortgage is signed and declare it abusive if they conclude so. The Spanish high court had asked the community several preliminary questions, questioning its 2020 ruling in which it ruled that this commission should be returned if it was abusive. The answer has been clear: “The directive [comunitaria] contrary to national jurisprudence.

The discrepancies between the criteria of the Supreme Court and the TJUE on account of mortgages and their different clauses go back a long way. The most famous of all was the retroactivity in the returns of what the bank charged for the floor clauses. In this specific case, the Spanish high court was especially harsh in its brief on preliminary rulings in which, when referring to the 2020 community judgment, it speaks of “inaccurate and incomplete exposition of the rules of national law and the jurisprudence of the Supreme Court Spanish, there are other pronouncements within the scope of the Court of Justice itself that may be contrary to that induced conclusion”.

Until now, the Supreme Court has interpreted the opening commissions as part of “the main purpose of the contract”, which, following what the community directive on unfair terms says, excludes them from judicial control. However, the CJEU sees it differently. He thinks that “the opening commission clause is accessory in nature with respect to the credit agreement”. “The Court of Justice recalls that the exception to the control mechanism established by the Directive to protect consumers must be interpreted strictly. Including in the concept of ‘main object of the contract’ all the benefits that are simply related to the main object itself and that, therefore, are of an accessory nature, would be contrary to said obligation of strict interpretation”, points out the CJEU in its note informative.

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Once that door is open, the community judges rule that “the competent judge must verify […] that the consumer is in a position to evaluate the economic consequences that derive for him from said clause”. “Among the facts that the Supreme Court must take into account when examining the clear and understandable nature of the clause relating to the opening commission […] include “the wording of the clause examined, the information offered by Caixabank [entidad demandada en este caso] to the borrower, including the one that is obliged to offer in accordance with the relevant national regulations, and the publicity that the bank makes in relation to the type of contract signed, all taking into account the level of attention that can be expected from an average consumer normally informed and reasonably attentive and insightful”, he continues. When a court finds that a clause is abusive, the entity has to return the money.

The CJEU also reminds the Supreme Court that “the directive does not oppose a national jurisprudence” that leads to the conclusion that the opening commissions are not abusive, but this “may be the objective of effective control by the competent judge in accordance with the criteria established by the Court of Justice”. In short, a Spanish court may consider that the opening fee is not an unfair term, but it may examine it and assess whether or not it is.

To raise the preliminary questions in which the Supreme Court questioned the judgment of July 2020, the Spanish magistrates use the case of a consumer who signed a contract with Caixabank in 2005 for 130,000 euros and who paid an opening commission of 875 euros . In April 2018, this client filed a claim that was upheld in the first instance and in the Provincial Court of Mallorca.

The case reached the Supreme Court, which submitted its questions to Luxembourg because it understood that the ruling that the CJEU issued three years ago on two cases (one involving BBVA and the other from Caixabank) “was conditioned by a distorted approach” of the judges who submitted their preliminary questions, a step that can be taken at any instance. This distortion, continues the order sent to the European judges, “affected both the exposition of the Spanish internal regulations and the exposition of the jurisprudence of this Supreme Court.”

That ruling of July 2020, “in the opinion of the Supreme Court, led a significant number of Spanish courts to interpret said judgment of the Court of Justice in the sense that it declared the jurisprudence of the Supreme Court regarding the Opening commission”. Now the sentence

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