COMERCIAL LAW
In the context of contractual relationships between consumers and banking institutions—which have been extensively analyzed by our courts—the opening commission is a clause that, like many others, has not been free from controversy.
This often-debated commission generally represents a percentage of the total loan amount, charged to the consumer at the time the loan is granted. It aims to compensate for the services and expenses incurred by the bank due to the assessment process involved in granting a loan, typically a mortgage.
Thus, even though the Supreme Court validated this clause in its Judgment 816/2023 of May 29, many Provincial Courts have interpreted that, according to the previous Judgment of the Court of Justice of the European Union (CJEU) of March 16, 2023 (case C-565/21), the opening commission clause was abusive. It was essential, they argued, for the bank to prove the specific services justifying the collection of such a commission in order to deem it valid.
In this national scenario, marked by legal disagreements over this commission, there were two opposing views. On the one hand, the Supreme Court stated it was not necessary to prove the specific services rendered by the bank to charge the commission (since such services were presumed provided under the legal framework of the Order of May 5, 1994). On the other hand, there was opposing case law declaring the clause null and void unless, in a judicial process, the bank could prove which specific services it had provided to justify charging the borrower.
Against this backdrop, following the preliminary questions submitted to the CJEU by the presiding judge of the Court of First Instance No. 8 of San Sebastián (a court specialized in these matters), the recent Judgment of the CJEU of April 30, 2025 (case C-699/23) was issued. As we will see, it supports the national judge’s role in determining the validity or nullity of the opening commission, helping to unify case law criteria.
Firstly, the CJEU emphasizes that the bank is not required to detail every service provided as part of the opening commission. It clarifies that Directive 93/13 does not require the lender to provide the consumer with, for example, invoices listing the specific services related to loan assessment.
However, the CJEU does point out that, for a reasonably well-informed and observant consumer to understand the financial impact of the opening commission clause—and for the clause to pass the transparency test in court—it is crucial to examine the information provided to the borrower before the loan contract was signed. Specifically, it must be assessed whether the bank provided the pre-contractual information it was obligated to deliver according to national law at the time of contracting.
The judgment also states that expressing the commission as a percentage of the total loan does not, in principle, hinder the consumer’s understanding of the clause. Therefore, stating the cost as a percentage does not appear to violate transparency requirements.
In conclusion, although the CJEU notes that the opening commission does not inherently create an imbalance between the contracting parties—and that banks are not obliged to explain what exact services it remunerates—this latest ruling shifts the focus to the pre-contractual information provided to the consumer. Particular attention must be given to whether the bank delivered the documentation it was legally required to provide.
