The Spanish Supreme Court has made certain requests to the Court of Justice of the European Union on unfair terms in consumer contracts, including the clause on the payment of an origination fee.
The Spanish Supreme Court has already ruled on whether the origination fee is null and void, in the Judgment of the Plenary of the Civil Chamber 44/2019 of 23 January, and considered that it constitutes, together with the remunerative interest, the price of the contract and, consequently, an essential element of the mortgage loan contract. For this reason, in accordance with art. 4.2 of Directive 93/13, the clause establishing the origination fee cannot be subject to content control when it is transparent, i.e. when it is clear and comprehensible.
The Court of Justice of the European Union has also ruled on the origination fee in the Judgment of 16 July 2020, allowing it to be declared abusive, especially if there has been a situation of imbalance between the contracting parties when the financial institution does not demonstrate that this fee responds to services that have existed.
However, the Spanish Supreme Court considers that the response of the Court of Justice of the European Union was due to the fact that the "referring court" incorrectly explained the Spanish legislation and the case law of the Spanish Supreme Court.
This has resulted in many Spanish courts continuing to apply the case law of the Spanish Supreme Court, while other courts do not apply that case law. Read more.
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