On October 29, financial institutions received a new judicial blow, this time as a result of the Supreme Court Judgment No. 566/2019, which declares the collection of commissions for overdraft on account (claim of debtor positions) abusive, without effective service.

It is not surprising that any punctual lack of liquidity, or even a lack of balance, can lead to a negative account. And it is not strange that the entity takes the opportunity to "warn of the overdraft", only once it has charged disproportionate and unjustified overdraft fees, regardless of how or when the amount is replenished or if a collection management has been necessary or not.

Well, the Supreme Court has had the opportunity to rule on the overdraft commissions of € 30 charged by Kutxabank (“commission for claiming debtor positions”), which the latter charged automatically, without discriminating periods of delay and without identifying the assumptions collection management costs incurred.

The rapporteur magistrate, Pedro José Vela, meets the criteria of the Judgment of the Court of Justice of the European Union (CJEU) of October 3, 2019 (case Gyula Kiss) that has established that the consumer must be able to verify that there is no overlap between the different expenses or among the services provided.

It also refers to the CJEU Judgment of February 26, 2015, which annulled the clause that allowed to pay the simple risk of the loan, when it was already covered by the legal and contractual consequences of default.

The Supreme Court has considered that the indeterminacy of the commission makes the clause abusive. In the first place, it does not identify what type of collection management is carried out, nor does it indicate whether it actually takes place or if it generates an effective expense. The indetermination also entails the sum to the interest of late payment of another amount, by way of sanction, for the same concept (punishing the debtor twice), in violation of the prohibition of disproportionate compensation (art. 85.6 TRLGCU), and charge for services not provided (art. 87.5 TRLGCU), both of which are contrary, in addition, to “good banking practices”.

The overdraft commission is not a criminal clause, as it does not contain a pre-settlement of damages or replace its compensation, provided for in the late payment interest clause.

On the other hand, this type of clause supposes an alteration of the burden of proof to the detriment of the consumer, who would have to prove that there has been no management, or that it has not had the cost incurred (with violation of art. 88.2 TRLGCU). This sentence provides the consumer with a solid argument to claim the return of any undue charge for this concept. If said request is disregarded, RIBELLES Abogados is available to those affected who may require legal advice and assistance for their claim.

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