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New blow to the banks and the Spanish Supreme Court, the European High Court rules in favor of full refund of mortgage expenses

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Another very interesting ruling is given by the European High Court on 16 July 2020. In the judgment with joined cases C-224/19, C-259/19, it rules on the payment of mortgage costs (derived from the formalization of mortgage loans, such as notary, registration, agency, appraisal and taxes) arising from the declaration as abusive of a clause of that contract, and on the commission opening or costs of trials.

The ruling of the TJUE establishes the following:

“Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding, in the event of the invalidity of an unfair contractual term which requires the consumer to pay the full costs of setting up and cancelling a mortgage the national court shall refuse to reimburse the consumer for the sums paid pursuant to that clause, unless the provisions of national law applicable in the absence of such a clause require the consumer to pay all or part of those costs.

Articles 3, 4(2) and 5 of Directive 93/13 must be interpreted as meaning that the contractual clauses falling within the concept of the ‘main subject matter of the contract’ must be understood as those governing the essential performance of that contract and which, as such, characterise it. By contrast, terms which are ancillary to those which define the very essence of the contractual relationship are not covered by that concept. The fact that an arrangement fee is included in the total cost of a mortgage loan does not mean that it is an essential provision of the loan. In any event, a court of a Member State is obliged to check the clear and comprehensible nature of a contractual clause relating to the main subject matter of the contract, irrespective of whether Article 4(2) of this Directive has been transposed into the legal system of that State.

Article 3(1) of Directive 93/13 must be interpreted as meaning that a clause in a credit agreement concluded between a consumer and a financial institution which requires the consumer to pay an arrangement fee may, contrary to the requirements of good faith, result in a significant imbalance between the rights and obligations of the parties under the contract, where the financial institution does not prove that that fee corresponds to services actually provided and costs actually incurred, which it is for the national court to ascertain.

Articles 6(1) and 7(1) of Directive 93/13 must be interpreted as not precluding the exercise of an action for restitution of the effects of a declaration of invalidity of an unfair contractual term from being subject to a limitation period, provided that neither the time when that period begins to run nor its duration makes it impossible in practice or excessively difficult for the consumer to exercise his right to seek such restitution.

Articles 6(1) and 7(1) of Directive 93/13 and the principle of effectiveness must be interpreted as precluding a system which allows the consumer to bear part of the costs of the proceedings on the basis of the amount of the sums unduly paid which are refunded to him following the declaration of the invalidity of a contractual term on the ground that it is unfair, since such a regime creates a significant obstacle likely to discourage consumers from exercising the right, conferred by Directive 93/13, to effective judicial control of the potentially unfair nature of contractual terms’.


About The Author
Israel Huertas Salazar

Inmobiliaria en Torrox. Ofrezco un trato personalizado y una contrastada experiencia como intermediario en la compraventa de inmuebles de todo tipo, oportunidades y grandes inversiones inmobiliarias, en diversas ubicaciones, tanto en Torrox, como Nerja, Frigiliana, Torre del Mar… y gran parte del territorio andaluz. Como broker inmobiliario, colaboro en red con todas las inmobiliarias y empresas promotoras y puedo conseguir la propiedad de su interés.

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