The Supreme Court declares the opening commission of 6% of the capital lent in a loan granted by a private non-banking entity to be abusive and forces the lender to return 2,490 euros to the consumer, along with the amounts charged for other canceled clauses. The ruling, which rejects the usurious nature of the remunerative interest, establishes as a reference that the usual opening commissions in the market range between 0.25% and 1.50% of the principal.
The ruling (consultable in the Judicial Branch) of the High Court, upholds the appeal filed by the lending company against the resolution of the Provincial Court of Madrid that had declared the contract void due to usury. The Civil Chamber rejects this classification by applying the doctrine established in the Plenary ruling 257/2023, of February 15, which requires comparing the agreed interest with the data in the registry of the Ministry of Consumer Affairs when the lender is not a credit institution.
The dispute began with the initiation of a lawsuit by a taxi driver who in 2017 signed a loan of 41,500 euros with a company subject to Law 2/2009, with an ordinary interest of 12.50% per year (16.38% APR) and a default interest of 14.50%. As collateral, the borrower constituted a non-possessory pledge over the rights to his taxi license, of which he had been the owner since 2002.
The Supreme Court explains that, according to official data from the Ministry of Consumer Affairs, the average rate of loans with mortgage guarantees of companies registered in the register of Law 2/2009 was 14.61% in 2017, so the agreed APR of 16.38% is not notably higher than the normal rate of money. He adds that this comparison is appropriate for loans granted by non-financial entities, compared to the statistics of the Bank of Spain, reserved for the operations of credit institutions.
The 6% setup fee is disproportionate
The Court assumes the case and declares the clause that imposed an opening commission of 2,490 euros, equivalent to 6% of the loaned capital, as abusive. The court indicates that the statistics of the average cost of opening commissions in similar operations ranged on those dates between 0.25% and 1.50% of the capital, so the percentage applied does not respond to an effective cost and violates article 87.5 of the General Law for the Defense of Consumers and Users (TRLGCU) for charging for services not provided.
The Supreme Court extends the same qualification to the non-payment commission of 30 euros for each returned receipt, appreciating that it could be reiterated automatically without proving effective claim management, and to the 90-euro commission for the issuance of debt certificates, which did not discriminate between types of certificate nor did it accredit a real service provided to the client. The court remembers that commissions are only valid as long as they reward services actually performed and have been expressly accepted by the consumer.
Early maturity and penalty of 4,500 euros
On the other hand, the Court annuls sections f) and h) of the early maturity clause, which allowed the creditor to demand full repayment of the loan in the event of non-compliance with any obligation, even accessory, without modulating the severity of the non-payment. Likewise, it declares the clause that added a penalty of 4,500 euros cumulative to late payment interest to be abusive, considering that it exceeds 10% of the capital lent and represents a disproportionate compensation prohibited by article 85.6 of the TRLGCU.
Now, the Supreme Court does endorse the late payment interest clause of 14.50%, since it only exceeds the agreed remunerative interest by two percentage points, within the margin admitted by jurisprudence so as not to be considered abusive. The court orders the lender to return the 2,490 euros of the opening commission and the amounts charged for the rest of the canceled clauses, with legal interest from each payment, and imposes the costs of the first instance on the defendant.