2023-06-06 00:31:26
Tuesday, June 6, 2023, 00:31
The Supreme Court (TS) has ruled on the commissions for opening mortgage loans. And he concludes that there cannot be a “univocal” solution for this type of taxation, and that its validity or invalidity “will depend on the individual examination of each case.”
The High Court maintains that, if its cost is within the average, and it also appears “clearly” in the loan deed, the opening commission is legal. This is what happens in the specific case analyzed by the Civil Chamber of the Supreme Court, that of a client of CaixaBank (then La Caixa) who in 2005 was charged 845 euros on a mortgage loan of 130,000.
This person denounced the clause before a court in Mahón (Menorca), which ruled in his favor. After unsuccessfully appealing this first ruling, the bank filed an appeal for annulment before the Supreme Court, which in turn raised a question for a preliminary ruling to the European courts.
The Court of Justice of the European Union (CJEU) ruled that the commission for opening a mortgage loan is only abusive if the bank does not inform the client about it, or if the amount of the clause is “disproportionate”.
In response to this interpretation, the Supreme Court issued a ruling on May 29. In its ruling, the High Court examines the transparency of the clause in the case being tried, and determines that it complies with the requirements established by the law at the time (Order of May 5, 1994).
This regulation required that the opening commission should include all the expenses of studying, granting or processing the loan. In addition, it had to be integrated into a single commission, necessarily called the “opening commission”, and accrued “in one go”.
The Supreme Court considers that all these conditions were met in the court case. That the client was able to understand the scope of the opening commission “through a comprehensive reading” of the contract, and that the taxation does not overlap with others included in the document.
The High Court rules that the clause is not abusive, “as long as it represents 0.65% of the capital.” According to his analysis, The average cost of these charges in Spain «ranges between 0.25% and 1.50%». In view of all these reasons, the TS validates the disputed commission, despite the fact that it obliges the bank to return half of the notary fees.
Criticism of the association of financial users
This ruling has been harshly criticized by the Association of Financial Users (Asufin). The organization believes that the Supreme Court interprets the CJEU’s doctrine on the opening commission “biasedly” in a sentence “disappointing for consumers.”
Asufin defends that “two relevant circumstances” concur with this commission that can make it void for abusive. In the first place, “that it is not always charged to the consumer.” And secondly, that the bank “has to prove the services to which its collection responds, as well as that its cost is not disproportionate.” In this regard, the association expresses its “alarm” because the Supreme Court assesses that the charge applied is “within the average.”
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