The Supreme Court declares the bank commission for claiming debit positions or overdrafts to be abusive.
On October 25th 2019, the Supreme Court, in Ruling 566/2019, declared a clause that set an overdraft fee of 30 euros to be abusive. With this ruling, the High Court went on to resolve the class action lawsuit filed against Kutxabank demanding the elimination of the aforementioned clause.
This commission is applied every time the consumer defaults on a loan or credit and the financial institution has to take the appropriate steps to ask the customer for its regulation, which in this case (and in the majority of institutions) was 30 euros.
Based on the banking regulations on commissions (Order EHA/2899/2011, Bank of Spain Circular 5/2012 and Order EHA71608/2010), it is stipulated that for institutions to be able to charge commissions to their customers, two requirements must be met.
Requirements for a bank to be able to charge fees
- That such commissions are in return for an actual service rendered to the customer.
- That the costs of the service have actually been provided.
The overdraft claim fee is abusive and does not meet these requirements and also contradicts the stipulations of the Bank of Spain’s 2009 Complaints Service Report:
- The collection of the fee must be linked to the existence of effective complaint procedures carried out with the debtor.
- The fee may not be reiterated when claiming the same debt.
- The fee must be a single rate; percentages are not valid.
- It cannot be applied automatically.
The Kutxabank commission in the case in question does not comply with the requirements of repetition and automatic claim, nor does it identify the type of management to be carried out.
The high court thus declared this clause null and void as abusive and ordered Kutxabank to remove it from its general terms and conditions; and to cease imposing and charging it to customers.
This ruling raises a new element to be taken into account in the relationship between consumers and banks and calls into question the usual practice of charging fees for claiming debtor positions.
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