The «validity of the «extensive» but advanced transparency of the arrangement fee and The «intermediate» structural abuse of the «transparent, extensive, advanced» but «unfair and inequitable» fee »

Abstract

The judgment of the Fourth Chamber of the Court of Justice of 16 March 2023 (Case 565/2021) confirms what some had understood since the Caixabank judgment of 16 July 2020, namely that the arrangement fee, like other costs associated with the provision of money for a standardised mortgage or consumer credit, is an ancillary element of the contract; and, therefore, whether or not it was understandable to the user beyond its wording, and whether or not it was considered to be transparent in a «comprehensive» way, the judgement of unfairness is inevitable.
Thus, the control of the «content», also known as «transparency», which according to the CJEU should be carried out ex officio by the referring judge with its «indications» to verify the requirement of good faith and the possible «serious» imbalance in the contract, namely whether the treatment given by the professional to the user was fair and equitable and whether or not there was a serious impairment of the user’s legal position, appears to be harmonised with this new decision, but this is not the case. The main reason for this is that the CJEU itself introduces a price control into the examination of the obligatory verification of the imbalance of the parties to the contract, without even providing a scale for its assessment. Therefore, although we praise the progress made by our courts in reaffirming 4 out of the 5 criteria established in STS 44/2019 of 23 January for the assessment of «comprehensive» transparency, we predict a new disharmony of jurisprudential decisions that the SC wanted to erase when it submitted its order of 10 September 2021 to the CJEU.
Our proposal for a harmonious solution to the control of transparency, without going so far as to control the price of this obligation, which we accept is not directly related to the essential element of the contract, but which is essential to avoid over-indebtedness in the market through responsible lending, is twofold:
On the one hand, not to make a finding of unfairness if, in the analysis of «extensive» transparency, the lender does not limit itself to a faithful expression of its legal concept, but rather specifies the services «inherent» in the concession and makes the borrower understand their nature, since in this case it would be «advanced» and extensive transparency and therefore cannot be considered unfair.
On the other hand, to stop the process of unfairness at the moment or stage when, in the «extensive» but «non-advanced» transparent clause, the judge finds that the lender has not behaved fairly and equitably in the individual negotiation scenario of the contract; in short, when he simply does not prove that he has provided the obligatory «inherent» services for the management and granting of this specific responsible credit, whatever the cost may be. Because in such a case we could say that it suffers from a «structural» abuse, although «intermediate» because we have analysed its abuse in the abuse test, but not because the services are cheaper or cheaper, to consider it valid or not. The question is whether or not an important obligation in the European market has been fulfilled, according to the settled case law of the CJEU itself, not whether or not the costs are proportionate to the service not provided or provided inadequately.
The CJEU has held that failure to comply with the obligation to check the borrower’s creditworthiness is punishable by loss of interest. There is therefore no need for a price control.

With our proposal, we could conclude: first, that the «extensive-advanced» transparent commission is valid and does not require a finding of unfairness, and is therefore close to the essential element of the contract; secondly, that the ‘extensive advanced’ transparent arrangement fee and the ‘non-advanced, fair and equitable’ fee are measured by the same criteria and are not considered abusive, as evidenced by national decisions; thirdly, that the ‘extensive non-advanced commission charged unfairly or inequitably’ suffers from structural or direct unfairness, although it is ‘intermediate’ between the ‘extensive non-advanced commission’ and the ‘unfair or inequitable commission’; and, fourthly, that the «extensive non-advanced commission charged unfairly or inequitably» is structurally or directly unfair, although it is «intermediate» between the essential element of making the price or remuneration of the credit available to the user and the other ancillary elements of the contract; its price does not have to be checked and its validity or unfairness decided on the basis of whether it is cheaper or more expensive; it functions like the main obligation, which, without providing comprehensible information on its function in the contract, suffers from structural or direct unfairness and does not require a judgement on fairness or price control.
In this way, we would treat the arrangement fee in accordance with the qualification of «significant» used by the ECJ itself, and we would continue to affirm that it is a tertium genus between the main elements of the contract and the ancillary elements.