4.20

Unfair clauses and administrative sanctions. A note

Tribunal Supremo

In 2014, following an administrative procedure for infringement of the legislation on consumer protection, the autonomous government of Andalusia imposed a fine of 81.000 € on Unicaja Banco S.A. The charge was “introducing unfair clauses into the contracts” concluded by the bank with its customers. Such practice is explicitly forbidden by Article 49.1.i) of the Texto Refundido de la Ley General para la Defensa de los Consumidores y Usuarios of 2007 (the central piece of national legislation in the field of consumer protection) and may be punished with an
administrative sanction.

Unicaja Banco S.A. filed an application for judicial review before the regional administrative court (Sala de lo Contencioso-Administrativo del Tribunal Superior de Justicia de Andalucía), challenging the legality of the fine. The applicant’s main argument was that the administration may not impose an administrative sanction for the introduction of unfair clauses into contracts if the clauses in question have not been declared unfair previously by a civil court. In other words, it held that characterising a given contractual clause as unfair is an intrinsically civil question, which may not be decided by public administration. So, in the applicant’s view, the administration has certainly a statutory power to fine the introduction of unfair clauses into contracts, but the exercise of such power is subject to a precondition: a declaration of unfairness by a civil court.

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Luis María Díez-Picazo, «Unfair clauses and administrative sanctions. A note. », InDret 4.20 ,pp. 462-468