The Supreme Court has taken advantage of a lawsuit against BBVA, Cajamar Caja Rural, Sociedad Cooperativa de Crédito (nowadays Cajas Rurales Reunidas) and Caja de Ahorros de Galicia, Vigo, Orense y Pontevedra (nowadays NCG Banco) where the nullity of those clauses that establish a minimum interest rate had been demanded, in order to set a legal precedent.
It stresses that in the above mentioned case the nullity of those clauses is declared due to a lack of transparency, and therefore it declares that “it is not enough that the clauses by themselves are understandable”. The court rules that the nullity of these clauses “does not affect the subsistence of the agreements nor the amounts that have been already paid”.
The Supreme Court establishes that the minimum level clauses, described as “fair”, are valid when they comply with the requirements of special transparency demanded in the agreements signed with consumers.
It also stresses that consumers need to be informed that when the interest rate drops to a certain level, the loan transforms itself into a loan with a fixed interest only changeable upwards and that they will not benefit from the falls of the reference index (generally the Euribor).
They should also be informed “clearly and prominently”, preventing the clauses from being overlooked by customers. The Supreme Court also indicates that the consumer should be informed of other products so that he can compare and decide after having enough information.
(…) Before analyzing the matter, the court points out that in the case of abusive clauses, the courts should “moderate” the rigidity of the process, so that it “is not necessary” to adjust to the structure of appeals.
(…) It estimates that the clauses are not transparent as, among other things, they are included “jointly” with maximum level clauses and as an apparent compensation and there are no simulations of the different scenarios related with the expected behavior of the interest rate when the agreement is signed.
(…) After analyzing the complaints presented by the plaintiffs, the court rules against the banks forcing them to eliminate the examined clauses from their contracts and banning their use in the future as they were contemplated in those contracts. (…)