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HomeLatest NewsThe CJEU endorses that the loan opening commission is considered abusive

The CJEU endorses that the loan opening commission is considered abusive

Date: May 20, 2024 Time: 09:14:54

The Court of Justice of the European Union (CJEU) ruled this Thursday that the commission when requesting a loan is not totally relevant in the opening of the contract, so it could become an abusive clause, contrary to what is stipulated Spanish jurisprudence The European ruling, according to Efe, refers to a case that confronts CaixaBank with a consumer after the court ordered the entity to return to the latter 845 euros that it had charged for the commission to open a guarantee loan mortgage company considering that the clause referring to that commission was abusive and, therefore, null and void.

After appealing unsuccessfully for the first time, CaixaBank raised the matter to the Supreme Court, which has asked the CJEU about the Spanish jurisprudence, which considers that the opening commission regulates an essential element of the contract, since it constitutes a principal of the price, and, therefore, its abusive nature cannot be appreciated if it is written in a clear and understandable manner. He also asks if European legislation opposes the criteria used in Spain to assess whether the wording is clear and understandable, or to consider that the opening commission may create an imbalance between the rights and obligations of the parties to the detriment of the consumer.

In its judgment, the CJEU points out that the European Directive opposes national jurisprudence that considers that the opening commission is part of the main object of the contract because it is one of the main items of the price and specifies that this commission has an “accessory” nature regarding the contract. It could not, therefore, benefit from the exception provided for in EU legislation, which exempts from this control the clauses that refer to the definition of the main object of the contract if they are written in a clear and understandable way.

Criteria to assess the clause

Regarding the criteria to assess whether the clause on the opening commission is clear and understandable, the Court indicates that the national judge must verify that the consumer is in a position to evaluate the economic consequences that derive from it, understand the services provided and verified that there is no overlap between contract expenses.

To do this, they can take into account the information offered by the bank and the publicity that the entity gives with respect to the contract, but not the general knowledge that exists among consumers about the opening clauses. On the other hand, the CJEU points out that the European Directive does not preclude the fact that Spanish jurisprudence may consider that the opening commission does not give rise to an imbalance of rights to the detriment of the consumer, as long as a judge can control whether this is the case

Although it corresponds to the national courts to evaluate it, the Court points out that it does not seem that the opening fee clause can negatively affect the legal position of the consumer, unless its importation is disproportionate, for example. In any case, the CJEU stresses that a jurisprudence that establishes that an arrangement fee clause cannot be abusively required for the mere fact that it refers to services inherent to the granting of the loan would be contrary to European legislation. This, I would argue, would limit the power of national courts to examine the potentially abusive nature of the clause and would not guarantee the full effects of the European Directive on the matter.

* This website provides news content gathered from various internet sources. It is crucial to understand that we are not responsible for the accuracy, completeness, or reliability of the information presented Read More

Puck Henry
Puck Henry
Puck Henry is an editor for ePrimefeed covering all types of news.
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