2023-06-14 08:27:43
On May 31, 2023, the judgment of the First Chamber of the Supreme Court number 816/2023, dated May 29, was announced, which resolved a matter in which a mortgage loan opening commission was questioned. Judgment expected, given that it was the pronouncement through which our court of appeal was going to receive the doctrine established by the Court of Justice of the European Union (CJEU) in its judgment of March 16, 2023.
This was an expected sentence and of special importance given that, according to the reiterated jurisprudence of the CJEU, the determination of the abusiveness of a clause is the responsibility of the national Judge -yes, following the interpretative parameters of the high European court-, therefore the position of our Supreme Court, as the highest representative of national justice, was of special importance.
The Supreme Court ruling upholds the appeal filed by a financial institution and declares the opening commission valid. And, following what our legislation establishes and what was said by the CJEU in various pronouncements, especially the one commented on March 16, 2023, it analyzes the opening commission of the specific case and considers that it is transparent and not abusive, remembering that each case will deserve a particular analysis. Remember that Spanish legislation recognizes this commission in a particular and separate way, just to remunerate the entity for the services inherent to the study, processing and granting of the credit facility, which generates a presumption of validity (the principle of normality of evidence allows infer that the granting of a loan effectively generates a series of procedures to be carried out by the entity, such as risk analysis, legal feasibility in relation to the mortgage and the preparation of the texts and contracts to be signed, among other procedures) . To enjoy this presumption, the requirements established in the regulations must be met, that is, it must include all the expenses of studying, granting or processing the mortgage loan; it must compulsorily be integrated into a single commission, which must necessarily be called the “opening commission”; said commission must be accrued in one go; and its amount, form and settlement date must be specified in the clause itself.
Immediately afterwards, he analyzes the transparency of the clause, which he considers fulfilled given that the nature of the services provided in return for the commission was easily understandable by the consumer, since the clause was clearly included in the public deed, individualized and highlighted as a single payment. and initial if the entire credit was available only once, as it happened.
The economic burden was known, since the cost was predetermined and indicated numerically and, in addition, the borrower learned of its collection on the same date and it is included as one of the component items of the APR. Finally, the appeals court analyzes whether the commission is disproportionate and concludes that it is not, since it is in the normal range, that is, between 0.25% and 1.5%.
This statement has resolved a case that can be considered common, so the given parameters will be used to resolve a large number of cases. And presumably most of them will be resolved in favor of the validity of the clause because most of the cases have reasons of identity or analogy with the resolved case. And it is true that there are different assumptions on which jurisprudence will have to be developed and some concepts will have to be outlined with greater precision -such as the established range of normality which, unfortunately, the sentence does not face where it comes from, although it will be a range which must necessarily be adapted to the date of granting and the specific circumstances of the case.
As expected, this sentence has had a different reception and has once again generated many reactions, which falls within the parameters of normality. It is even healthy and necessary that in a community, such as the legal community, debates with critical analysis are established. Now, what is not feasible is that certain reactions and speeches motivated by spurious interests whose sole objective is to discredit and delegitimize our Supreme Court take place and be protected. There were several of us who already warned that the CJEU ruling dated March 16, 2023 had not said that the opening commission was abusive and that it had established that, given that there was recognition in national legislation, if the commission responded to the concession services, the clause was valid, as long as it was not disproportionate –see sections 57, 58 and 59 of the aforementioned judgment-. And what the Supreme Court has done is follow the doctrine of the CJEU with scholastic rigor in a sentence that justly stands out for its exhaustiveness.
Thus, the Supreme Court has written a new chapter in the history of this controversial clause. There will be more chapters and they will be written as it should be: rigorously and analyzing the cases with all their identities and differences. Surely this pronouncement will determine that a large number of the claims filed or pending declare the commission valid.
David Viladecansdirector of the Legal Department of Tecnotramit
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