For the third time since 2015, the Supreme Court – this time without meeting its plenary session – has ruled on the usury control of revolving cards. The recent Judgment 367/2022 of May 4, in accordance with the proven facts established in the instance, does not appreciate usury in a revolving card subscribed in 2006 and with an APR of 24.5%.
Without a doubt, it is a pronouncement received with satisfaction by the entities that market these products, which have been receiving a barrage of demands since the well-known Plenary Judgment 628/2015 of November 25 -turned revolving cards into the “ugly duckling” of banking litigation in our country.
Now, all that glitters is not gold. Both the approach, the rules and the conclusions reached by the High Court present a series of contradictions that do not completely clarify the existing doubts in the application of usury control in revolving cards.
Regarding the approach, the Supreme Court indicates that while in 2015 -it considered that an APR of 24.6% of a revolving card subscribed in 2001 was usurious- it came to prosecute whether “an interest that far exceeded (practically double) the rate fixed in the instance”, now “the question raised […] consists of determining what should be the comparative term to be used as indicative of the “normal interest of money” in the case of revolving cards” as already resolved in its Plenary Judgment 149/2020 of March 4.
As much as the proven facts in each of the instances could constrict the margin of action of the Supreme Court, it is not easy to reconcile with the principle of legal certainty that in a period of seven years two pronouncements of the High Court analyze TAE so similar – 24.5%; 24.6%- regarding revolving cards subscribed with such little time difference -2011; 2006- and lead to usury control with diametrically opposite results.
As for the rules, the Supreme Court insists that “the average interest rate must be used, at the time of signing the contract, corresponding to the category to which the questioned credit operation corresponds.” Thus, the statistics published by the Bank of Spain specific to revolving cards “at the time of signing the contract” will be applied.
However, the Bank of Spain did not begin to publish the specific statistics for revolving cards until June 2010. Therefore -and in the absence of an explanation in the Judgment itself-, one wonders how the Supreme Court was able to apply such statistics for a product subscribed in 2006.
Likewise, the Supreme Court concludes – stating that it does so without “deviating from the established doctrine” in the 2020 Plenary Judgment – that “it was usual for revolving cards contracted with large banking entities to exceed 23%, 24%, 25% and up to 26% per year.
However, if we analyze the 2020 Judgment -which also claims to follow the doctrine established by the 2015 Plenary Judgment to deny the justification for an APR of 26.82% raised later to 27.24%- we are told that the average rate of 20% per year “is already very high” and that “the higher the index to be taken as a reference as “normal money interest”, the less margin there is to increase the price of the credit operation without incurring in usury”.
All of the above necessarily invites us to think that the Supreme Court has noted the errors and limitations of the 2015 and 2020 Plenary Judgments and has chosen -correctly- to reinstate a reality from which we should never have departed: that the APR of credit cards of revolving credit marketed by the large entities in Spain operate within the normality of the market and are not usurious.
With the usury of revolving cards dead, it seems that the debate will focus on transparency control. Especially now that we are hearing some voices suggesting that the latest pronouncements of the CJEU would even make it possible to defeat the sacrosanct principle of res judicata and re-prosecute – in a certainly questionable way – usury claims that were firmly dismissed under the examination of a supposed lack of transparency.
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