(of the restrictive interpretation of the Supreme Court and of some Provincial Courts of the European Union regulations and of the judgments of the CJEU).
Certain Spanish Courts, starting with the Supreme Court, show an exaggerated tendency to interpret and apply European Union consumer law in the most favorable way for the employer. And, even when corrected by the Court of Justice of the European Union, the delay in the application of the doctrine consolidates in fact many situations contrary to this jurisprudence.
From the famous floor clauses, when the High Court wanted to limit the retroactivity in time of the effects of the declaration of nullity, to the prescription of the right to collect mortgage expenses, to the IRPH, to the procedural costs in case of partial estimation of consumer claims and, now, to the opening commission of mortgage loans and credits.
This discourages citizens from filing legal claims, since the initial response to them is, from the outset, rejection.And only with the exhaustion of all instances after a lengthy judicial ordeal, to which only a few are thrown, a favorable resolution is obtained that could then be taken advantage of by other consumers.But due to the lengthy judicial times, by the time such a pronouncement is made, many have fallen by the wayside for not exhausting all judicial remedies, and others have abandoned their claim.
The latest example of a general condition that is being upheld by case law is the origination fee for mortgage loans and credits.
The Court of Justice of the European Union, by judgment of March 16, 2023, left open the door to the possibility of declaring the nullity of the opening commission of bank operations formalized with consumers.
However, the Supreme Court, in a judgment dated May 29, 2007, ruled in favor of a bank on the grounds that the services received in exchange were easily understood by the consumer.
However, some Provincial Courts (Las Palmas, Girona) have followed the criteria of the CJEU and declared the nullity of the arrangement fee.
For me the essential aspect to declare such nullity is the fact that the application of a fixed percentage on the amount of the operation does not fit with the fact that a specific remuneration of services related to the study, the design and the singularized processing of an application for a loan or mortgage credit is being satisfied, a requirement referred to by the CJEU.
But, in short, the rulings of the Provincial Courts may be appealed before the Supreme Court, so there is not much room for optimism on the part of the consumer.