The Supreme Court has formulated a battery of questions to the Court of Justice of the European Union (CJEU) in order to review and clarify its position on the opening commissions in mortgage loans and credits, to end the contradictions between the Spanish doctrine and the community
In an order, the Civil Chamber refers to , which insisted that this commission cannot be considered an essential benefit of the mortgage just because it is included in its total cost, and warned of the significant imbalance between the parties that it could cause.
In the specific case raised by the Supreme Court, the consumer signed a mortgage of 130,000 euros with La Caixa (now CaixaBank) in 2005, which included an opening commission of 845 euros.
Years later, in 2018, the client requested the annulment of this clause and the return of the amounts paid in excess, a request that was attended both in the first instance and by the Provincial Court of Palma de Mallorca, and appealed by the bank in cassation.
Now the Supreme Court perceives certain controversies between national and European jurisprudence, and recalls that, in Spanish Law, there is a “differentiated treatment between the opening commission and the other bank commissions.”
Thus, while, according to the law, the opening fees for home mortgage loans or credits are accrued only once and include any “study, concession or processing” expense of the entity, the rest of the commissions “must respond to a specific service”.
The high court refers to its 2019 ruling, in which it considered that “the opening commission was a part of the price” since “it constitutes one of the main remuneration that the entity receives for granting the loan”, which is why “it cannot be controlled when it is transparent”.
Therefore, the room continues, to justify it, the bank cannot be required to “have to prove, in each loan, the existence and cost” of certain procedures such as the feasibility study, the solvency of the debtor or the state of house charges.
However, the CJEU ruled that the national judge should control the clear and understandable nature of this clause since it could generate a significant imbalance when the entity did not demonstrate that the commission responded to services rendered.
legal uncertainty
In its letter to the European justice, the Supreme Court maintains that if the CJEU responded in this way, it was because the preliminary ruling that the Mallorca court raised at the time exposed the internal regulations and national jurisprudence “in a distorted way”. For this reason, he asks to put an end to a “legal uncertainty” that “seriously hinders” his work as a court of cassation, and asks three questions.
Among other issues, it asks Luxembourg to clarify whether a doctrine that contemplates the national regulation on the opening commission as remuneration for services such as the study, granting or processing of the mortgage loan or credit, is in accordance or not with the Law of the European Union.
In a press release, the Asufin consumer association reproaches the position of the Supreme Court, which “seems to forget that entities cannot charge for functions that are part of their performance and regulatory compliance.”
“It is a pity that instead of abiding by the decisions of European justice, our highest court extends bank litigation in favor of entities and against consumers,” laments the president of the group, Patricia Suárez.
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