Understand that is not part of the main object of the contract, but that is an “accessory”, which flexibilitza the control of abusivitat
It will be a national judge who must evaluate the possible abusive nature of the clause
The new Ruling of the Court of Justice of the European Union (Hall 4a) of 16 march 2023, states that the commission for the opening of a loan or credit with mortgage guarantee does not form part of the main object of the contract, if not that is accessory and, therefore, opens the door to what could be considered abusivesince , in this way, not applicable, except that provisions of the european legislation that exempts the control on abusive clauses are recognized as the main object of the contract.
However, the ECJ has that the national judge will be the one who will have to evaluate the possible abusive nature of the clause of a contract, verifying the compliance with the contractual good faith and if it causes an imbalance important between the rights and obligations of the parties. And also, that this must be made by a transparency control, i.e., must analyse if the consumer was to have information clear and understandable in order to know the economic burden and legal status of the clause.
The ECJ solves the following on the request of decision prejudicial relative to the interpretation of articles 3 to 5 of Directive 93/13/EEC of 5 April 1993 on unfair terms in contracts concluded with consumers:
1. The commission of the opening does not form part of the essential elements of the contract
THE ECJ interprets that the commission for the opening of a loan or credit —that covers the remuneration of the work related to the study, the concession or the processing of the loan or credit or other similar services inherent to the activity of the provider arising from the granting of the loan or credit— it does not form part of the obligations essential to the contract, that is to say, of what can be considered as the main object of the contract.
The Directive 93/13 prevents the control of abusivitat apply to the clauses that contain the essential elements of the contract (as it is in the price), if they are drafted in clear and understandable manner.
Therefore, the judge can only control the abusive nature of a clause that refers to an essential element of the contract, if it is clear and understandable. But the ECJ did not consider that the commission's opening is an essential element of the contract, therefore, is flexibilitza the possibility that the judges consider the abusivitat of the clause.
2. The clause that establishes the commission of the opening should be subject to a transparency control
The contract clause that establishes the commission of the opening, does not comply automatically with the requirement of transparency of article 5 of Directive 93/13. The judge must “assess the nature of which is clear and understandable” of the clause in accordance with the case law, checking if the borrower/consumer is:
- (i) In a position to assess the economic consequences arising for him from the clause.
- (ii) To understand the nature of the services provided in consideration of the expenses provided for in this.
- (iii) And verify that it is not based with the different expenses set out in the contract or the services that retribueix.
Therefore, this evaluation of the character is clear and understandable to the clause of the fee, must be made by the judge in connection with the case law, the literal of the clause examined and the advertising that the financial institution performs in relation to the contract signed. And all this, it also has to take into consideration the level of care that can be expected of a consumer medium, normally informed and reasonably attentive and insightful.
Finally, he considers that the notoriety of these clauses of the committee of opening is not an item to assess if they are clear and understandable. That is to say, the general knowledge of the clauses and how they are written in a contract, are issues that are different. And that the information provided by the financial institution to the consumer is relevant to assess the “nature clear and understandable” of the clause, either in the context of the negotiation or the advertising of the entity in relation to the contract. As well as it is the location and structure of the clause, which will enable the consumer to assess whether it constitutes an important element of the contract.
3. The abusivitat of the clause must determine the national judge
THE ECJ understood that the abusivitat or not the clause of the commission of the opening must be interpreted by the judges of national. That is to say, they must assess:
- (i) the fulfilment of The “requirements of good faith”, checking if the professional, trying so fair and equitable to the consumer, could not reasonably be expected that this would accept a clause of this kind in the framework of a negotiation individual.
- (ii) If “cause to the detriment of the consumer, an imbalance important between the rights and obligations of the parties arising from the contract”. This exam cannot be limited to a simple comparison between the total amount of the operation of the contract and the cost of the clause fee in particular. Should assess if we disregarded the legal position of the consumer in accordance with the national regulations applicable.
- (iii) The nature of the goods or services that are the object of the contract and considering, at the time of the conclusion of the contract, the circumstances that arise in your celebration, los other clauses of the contract, or other contract of that depends on the (article 4.1 of the Directive 93/13).
Therefore, the Spanish courts, in spite of that clause of the commission of the opening is scheduled in the national regulations and pay some services of the institution's lending, have to examine the always the if clause is abusive incoming to assess the possible existence of compliance with the requirement of good faith and an imbalance of the contract.
Although, it is important to note that the sentence he adds that (section 59): “a cláusula contractual regulated by the Law on the national establece a commission of opening, comisión que tiene por objeto la remuneración de servicios relacionados con el estudio, el diseño y la tramitación singularizada of an application for a préstamo o crédito hipotecario, los such as son necesarios para su concession, no parece, sin perjuicio de la comprobación that deberá make the judge competente, that from being effective influence negativamente in the position legal el Derecho nacional place in the consumer, at least not from being effective considerarse razonablemente that los servicios proporcionados como counterparty se prestan in the mediterranean from las prestaciones antes descritas [when the financial institution does not demonstrate that the commission responds to the services actually rendered and expenses that have incurred] or that is the amount that must be paid to the consumer in the concept of dicha comisión sea desproporcionado en relación con the amount of the préstamo.”
