Moral damage to the Consumer. Opening commission
It cannot be excluded (at least, in principle) that consumers who suffer the imposition of clauses such as the one at issue in the main proceedings may claim, apart from the contractual reparation for the material damage suffered, some amount for non-pecuniary damage«.
The sentence, contained in the report that the European Commission addresses, dated August 29, 2019, to the Court of Justice of the European Union (CJEU), opens a dimension, hitherto unexplored and unknown. Because it is saying that both in abusive clauses and in opening costs, consumers could sue for the moral damages suffered.
Not having been able to negotiate anything, due to mandatory regulations, the client has been forced to pay those expenses halfway.
This also opens the door to another obvious possibility: that of consumers being able to sue for the same thing, moral damages, against complex financial products.
The Civil Chamber of the Supreme Court closed that possibility at the time when estimating the need for fraud (intentionality).
However, the same, in a sentence, granted moral damages to a person who hired a summer home and it was not delivered on time.
The same Chamber ruled imposing reparation and non-pecuniary damage for the suffering caused to the plaintiff and his family by not having been able to enjoy the holidays in the chosen place. In said sentence, he did not appreciate any fraud.
The European Commission report has been prepared by Napoleón Ruiz García and Julio Baquero Ruiz, members of its Legal Service, in response to joined cases C-224/19 and C-259/19.
Both have their origin in two preliminary rulings submitted to the CJEU by the Court of First Instance 17 of Palma de Mallorca and by the Court of First Instance and Instruction 6 of Ceuta to clarify what to do in two lawsuits between citizens with Caixabanc, S.A., BBVA.
In said questions for a preliminary ruling, the respective magistrates ask, among other things, if there was room for control of abusiveness in the opening commission and who should pay the commission for management expenses and appraisal expenses.
CONTRADICTS THE CIVIL ROOM OF THE SUPREME
The Civil Chamber of the Supreme Court considers that the opening commission clause constitutes an element of the contract price and that the control of abusiveness was not appropriate, according to ruling 44/2019 of January 23.
The Commission recalls that although Spain transposed Directive 93/13, but not its article 4, paragraph 2, it is obliged, by its article 5: «In the cases of contracts in which all the clauses proposed to the consumer or some of them appear in the written, these clauses must always be written clearly and understandably. In case of doubt about the meaning of a clause, the most favorable interpretation for the consumer will prevail.
Therefore, the European Union understands that the aforementioned opening commission is subject to both abusive control -to prevent it from being disproportionate and unbalancing- and formal transparency -that the client is well informed-.
With this ruling, the Commission deals a setback to the Supreme Court.
That he repeats as to who should pay the agency fees. The Commission affirms that there is no justification for charging them to the client since there is no additional mandatory rule that says that if the clause is invalid, the client pays it.
"With all due respect, the Commission disagrees with such jurisprudential criteria [of the Civil Chamber of the Supreme Court of Spain] and considers, instead, that the management expense (not even its division in equal parts), unlike The notarial or Land Registry expenses are NOT attributed by any applicable national legislative provision in the absence of an agreement between the parties, "says the report.
TO THE PROVINCIAL COURTS ALSO
Nor does the European Commission share the criteria of many of the Spanish Provincial Courts that say that the appraisal costs must be paid by the client.
«Apparently, the majority criterion of said 'minor' jurisprudence is to deny the restitution of said expense to consumers - despite the declaration of invalidity of the clause - by estimating that consumers are the beneficiaries of the mortgage loan and that , being the offer of the mortgage guarantee the legal requirement for the celebration of the same, it corresponds to them to 'prove the sufficiency of the guarantee offered to the financial entity and who(s) must bear the necessary expenses for its valuation'", explains the European Commission.
And he destroys it with complete simplicity, for the same reasons that he had previously displayed with the Supreme.