The opening commission is the money that banks claim from their clients for administration efforts when contracting a mortgage. For the remuneration to be legal, a series of conditions must be met that customers must know in order to request a refund if any are breached. The claim action is imprescriptible and both the commission money and the mortgage expenses can be requested.
The position of the Court of Justice of the European Union (CJEU) is clear: it affirms that banks are not obliged to apply this type of commission when granting a mortgage loan and, therefore, requires transparency when charging for this concept. According to article 3.1 of the European directive on unfair terms in contracts concluded with consumers, when they cause the consumer “a significant imbalance between the rights and obligations of the parties that derive from the contract.”
For the Supreme Court, abusiveness must be verified on a case-by-case basis, as indicated in its judgment of May 29, 2023, in which it interprets for the first time the doctrine of the CJEU and revokes the sentence of the Provincial Court of Mallorca against Caixabank in the that the opening commission of 850 euros for a loan of 130,000 euros was described as abusive. According to the High Court, the commission is clear and understandable, since assuming 0.65% of the loaned capital is within its average cost in Spain, which is between 0.25% and 1.5%.
The ruling considers the existence of a loan study and preparation service that would justify the collection, despite the fact that the Provincial Court of Mallorca denied it for lack of evidence. Thus, the Supreme Court validates the notarial accreditation of the delivery of a summary of the commissions applied by the bank to the borrower, although the same court previously considered that these accreditations were insufficient as proof of the delivery of the endorsed documentation.
This Tuesday the first opening commission ruling was published after the Supreme Court’s decision and it was in favor of the consumer. The court of first instance 5 of Alicante has annulled the commission of Banco Santander considering that it had not been informed in a prior, concise and clear way about this charge to the user.
The Association of Financial Users (ASUFIN) believes that the commission could be null and void for two reasons: “The first is that it is not always charged to the consumer, for example, when the loan is not granted or accepted, and the second, that the bank must prove the services to which its collection responds, as well as that its cost is not disproportionateâ€, he declares.
The president of the Association of Users of banks, savings banks and insurance in Spain (ADICAE), Manuel Pardos, considers that the opening commission is “arbitrary and unjustified” because “it is as if they charged you to enter a store to buy”. For him, these commissions should be declared illegal.
According to Silvia Escamez of the Finteca mortgage broker, the changes in the regulations are not intended to prohibit them, but rather to give customers more facilities. For example, these commissions stop acting as inhibitors when changing the bank mortgage. Currently, in Spain, most banks do not charge for this type of commission.
The opening commissions will be illegal when the bank charges money that does not correspond to the services it provides or its expenses, something that must be justified. Also when it does not provide information in a clear and understandable way to the client about this clause.
