Unfair Banking Clauses in Spain: Floor Clauses, IRPH, Mortgage Expenses & How to Claim

Unfair Banking Clauses in Spain: A Practical Guide

Spain has seen the largest wave of consumer banking litigation in European history. From floor clauses to mortgage expenses and IRPH, Spanish courts and the CJEU have built an extensive body of case law that every practitioner should know.

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## Legal Framework

- Directive 93/13/EEC: The cornerstone of unfair terms protection in consumer contracts.

- TRLGDCU (RDL 1/2007): Arts. 82-91 regulate unfair clauses in Spanish law.

- Law 5/2019 (LCCI): Tightened transparency requirements for mortgage credit.

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## Floor Clauses (Clausula Suelo)

A clause setting a minimum interest rate regardless of the reference index (typically Euribor). Even when Euribor drops below the floor, the consumer keeps paying the minimum.

Key rulings:

- STS 241/2013 (May 9): Declared floor clauses void for lack of material transparency, grammatical clarity is insufficient; the consumer must understand the real economic burden.

- CJEU, December 21, 2016 (C-154/15 et al.): Ruled that the Spanish Supreme Court's temporal limitation on restitution was contrary to Directive 93/13. Full retroactive restitution is required.

Limitation period: The nullity action is imprescriptible (Art. 83 TRLGDCU). The CJEU has reinforced this in multiple rulings (C-776/19 to C-782/19, June 10, 2021).

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## IRPH (Mortgage Lending Reference Index)

An official index historically 1.5-2 points above Euribor, generating significant overcosts.

Key rulings:

- CJEU, March 3, 2020 (C-125/18): IRPH is not exempt from transparency review despite being an official index.

- STS 595/2020 (November 12): IRPH is not inherently unfair but may be void if the bank failed to provide comparative information against Euribor.

Claims remain open, decided case-by-case on transparency evidence.

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## Mortgage Expenses

The Supreme Court (STS 44/2019, January 23) established definitive allocation:

| Expense | Who Pays |

|---|---|

| Notary | 50/50 |

| Land Registry | 100% bank |

| Agency | 50/50 |

| Stamp duty (AJD) | Consumer (before Nov 2018); Bank (after RDL 17/2018) |

| Valuation | Consumer |

Limitation: The restitution claim is subject to a 5-year limitation period (Art. 1964 CC), running from January 23, 2019. Many claims may already be time-barred.

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## Opening Fee (Comisión de Apertura)

- CJEU, March 16, 2023 (C-565/21): Opening fees are subject to unfairness review, they are not excluded as "essential price elements."

- STS 816/2023 (May 29): Fees void where the bank failed the material transparency test.

Claims are surging post-2023 CJEU ruling.

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## Early Termination Clause

- CJEU, March 26, 2019 (C-70/17 & C-179/17): Termination for a single missed payment is unfair. Courts may substitute Art. 24 LCCI thresholds (12 missed payments or 3% of capital in the first half; 15 payments or 7% in the second half) if voiding the entire loan would harm the consumer more.

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## Excessive Default Interest

- STS 265/2015: Default interest on personal loans is unfair when exceeding the agreed rate by more than 2 percentage points.

- Art. 25 LCCI: For mortgage credit, default interest is capped at the contractual rate plus 3 points.

Consequence: The clause is deemed unwritten (Art. 83 TRLGDCU), no reduced rate applies; only the contractual interest accrues.

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### How to Claim

1. Internal complaint: File with the bank's Customer Service Department (SAC).

2. Bank of Spain complaint: Non-binding but produces a useful evidentiary report.

3. Court action: Claim before the Court of First Instance for declaration of nullity and full restitution with legal interest.

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