Unfair Bank Fees in Spain: How to Claim Your Money Back

🇪🇸 Read the original in Spanish

Have you checked your bank statement lately and discovered charges with strange names like "comisión por reclamación de posiciones deudoras" (fee for claim of debtor positions), "mantenimiento de cuenta inactiva" (inactive account maintenance), or "gasto por descubierto" (overdraft fee)? You are not alone. Millions of citizens and foreign residents in Spain pay hundreds of euros every year in bank fees that, according to the jurisprudence of the Supreme Court and consumer regulations, are completely illegal and abusive. Financial institutions usually apply these charges automatically, trusting that the client will not claim due to laziness or lack of knowledge of their rights. However, recovering your money is a viable, regulated process with a very high success rate if you know exactly what steps to take and what laws protect you.

What is an unfair bank fee? The legal framework that protects you

To defend yourself against banking abuses, the first step is to understand that financial institutions cannot charge you whatever they want, whenever they want. In Spain, the principle of freedom of contract has very clear limits when it comes to consumers and users.

The reference regulations protecting citizens against these abusive practices rest on three fundamental pillars:

1. *The General Law for the Defence of Consumers and Users (Ley General para la Defensa de los Consumidores y Usuarios, Royal Legislative Decree 1/2007, of 16 November): In Article 82, the law defines as unfair (cláusulas abusivas*) all those terms not individually negotiated that, contrary to the requirement of good faith, cause a significant imbalance in the rights and obligations of the parties arising from the contract, to the detriment of the consumer. Furthermore, Article 87 of this same law points out terms that determine a lack of reciprocity in the contract as unfair, and Article 89 declares charges for services not effectively provided as unfair.
2. *The doctrine of the Supreme Court (Tribunal Supremo) and the Bank of Spain (Banco de España): The Claims Service of the Banco de España* establishes a clear and repeated criterion: for a bank fee to be legal, it must correspond to an effectively provided service that was requested or expressly accepted by the client, and its cost must be proportionate. If the bank charges you for a service it has not actually given you, or for an automatic management process that has not caused them a real cost, the fee is void.
3. *The Civil Code (Código Civil): In Article 1256*, it establishes that the validity and compliance of contracts cannot be left to the discretion of one of the parties. The bank cannot unilaterally modify the rules of the game in a disproportionate manner.

The principle of reciprocity and effective service

If your bank charges you, for example, €30 or €40 for the simple fact that your account went into the red for a single day, it is violating the law. This automatic penalty does not correspond to any real management or to a service that you requested; it is a mere sanction that the bank self-attributes, which is prohibited by consumer regulations.

The most common unfair fees: Identify them in your account

Not all bank charges can be claimed back, but the majority of fees that cause frustration among users are indeed null and void by law. Below, we detail the most common ones:

1. Comisión por reclamación de posiciones deudoras (Fee for claim of debtor positions or overdraft)

This is the star charge of abusive banking. It is generated when your account is left with a negative balance (overdraft) or when you are late in paying a loan or mortgage instalment. It usually ranges between €30 and €50.

• Why it is illegal: The bank charges it automatically through a computer process. The Tribunal Supremo (Ruling of 25 October 2019) determined that this fee is unfair because it does not correspond to an effective and personalised management of the claim (such as sending a burofax —a certified registered letter— or making an individualised phone call), but rather to a simple automation to penalise the client.

2. Maintenance fee on accounts linked by imposition

This occurs when you open a current account solely to pay the instalments of a mortgage or a personal loan, or to receive the interest from a deposit, and the bank starts charging you a maintenance fee (comisión de mantenimiento) for that account.

• Why it is illegal: The Banco de España establishes that if the account is maintained solely by imposition of the entity to service another main contract (such as the mortgage), and the client does not use it for their daily operations (purchases, transfers, etc.), the bank cannot charge maintenance or administration fees.

3. Fee for cash deposits over the counter

Some banks charge a fee (which usually hovers around €2 or €3) when a person goes to the branch to make a cash deposit into a third party's account, claiming it is a "cashier service" (servicio de caja).

• Why it is illegal: The Banco de España considers that the cashier service in these cases is already paid for through the maintenance fee paid by the holder of the receiving account. Charging the person making the deposit represents a double charge for the same service.

4. Unilateral modification of conditions ("Fee-free" accounts that become paid accounts)

It is very common to sign up for an account under the promise of "zero fees forever" and, after a few years, the bank sends a letter announcing that you must now pay €15 per month or €60 per quarter if you do not meet new and strict requirements.

• Why it is illegal: Although banks can modify open-ended contracts, they must give clear and personal notice at least 2 months in advance (according to payment services regulations). If they do not comply with this advance notice or if the modification is disproportionate and breaks the initial contractual balance without giving the client a viable alternative for termination, it can be considered unfair.

Concrete examples: How much money can you recover?

To understand the real impact of these practices on the household economy, let us analyse two everyday situations based on real claim cases in Spain.

Example 1: María's overdraft due to her rent payment

• The situation: María has her account with a bank where she receives her salary. On the 1st of each month, her rent payment of €900 is charged. One specific month, María's salary is delayed by one day due to a public holiday, so the rent receipt arrives when the account only has a €100 balance. The account is left with an overdraft of -€800 for just 24 hours.
• The bank's abuse: The bank charges María default interest for the overdraft (which is legal, provided it does not exceed the limit of the Consumer Credit Law), but it also automatically charges her a "comisión por reclamación de posiciones deudoras" of €45 and an overdraft fee (comisión por descubierto) of €15 (calculated as a percentage of the highest debtor balance). In total, a €60 penalty for a one-day delay.
• The result of the claim: Since the bank did not carry out any real collection management beyond an automatic computer entry, María claims based on the jurisprudence of the Tribunal Supremo. The bank is forced to refund the €60 overcharge in full.

Example 2: Carlos and Sophie's mortgage account

• The situation: Carlos and Sophie (an expat couple living in Alicante) took out a mortgage in the year 2018. The bank forced them to open a current account with them exclusively to direct debit the monthly mortgage payments, which amount to €650. They do not use that account for anything else: they have no cards linked to it, they do not receive their salaries there, and they do not pay other bills from it.
• The bank's abuse: During the first few years they were charged nothing, but in 2021 the bank modified its rates and started charging them a maintenance fee of €30 per quarter (€120 per year). After three years, they have been charged a total of €360 in maintenance fees.
• The result of the claim: As this is an instrumental account opened at the bank's requirement for the payment of a mortgage contracted before the entry into force of the 2019 Real Estate Credit Agreements Law (under the criteria of the Banco de España for prior contracts), the entity cannot charge these fees. After presenting a formal claim, Carlos and Sophie recover the €360 improperly charged and get the fee eliminated for the future.

Step-by-step guide to claiming back your bank fees

Claiming is not difficult, but it requires following a rigorous order and keeping a written record of every step to prevent the bank from ignoring your request. Follow this numbered procedure:

Step 1: Gather evidence and statements

Before speaking to the bank, download your bank statements from the last few years from your online banking or request them at your branch. Identify each unfair charge, note the exact date, the concept (for example, "Liquidación de cuenta" or "Comisión de reclamación"), and the exact amount. Sum all the amounts to get a total claimed figure.

Step 2: Submit the claim to the Customer Service Department (Servicio de Atención al Cliente - SAC)

It is useless to complain verbally to the cashier or the manager of your branch; words are blown away by the wind. You must draft a formal written document addressed to the Servicio de Atención al Cliente (SAC) of your financial institution (all banks have a legal obligation to have this department, which is independent of the branches).

• The document must contain your personal details, the account number, the breakdown of the fees you consider unfair, and the legal basis (citing the General Consumer Law and the doctrine of the Banco de España).
• You can present it physically at your branch (demanding that they stamp a copy with the entry date) or send it by burofax with acknowledgment of receipt and text certification, or through the official email address of the SAC if you have a digital signature.

Step 3: Wait for the legal resolution period

Once the claim is submitted, the bank has a maximum period of 1 month (if you are a consumer) or 15 business days (if the matter refers to payment services) to reply to you officially. During this time, the bank can:

• Accept your claim: They will refund the money directly into your account.
• Reject your claim: They will send you a letter justifying the charge.
• Not reply (administrative silence): If the period passes without a response, it is understood as rejected.

Step 4: Go to the Claims Service of the Bank of Spain

If the bank's SAC rejects your request or does not reply within the deadline, the next step is to submit a formal complaint to the Banco de España (this can be done online through their electronic office).

• Attach your initial claim to the SAC, the proof of submission, and the bank's response (if any).
• The Banco de España will issue a report (within an average period of 4 months). Although its resolutions are not mandatory (they are non-binding), a favourable report from the Banco de España is usually enough for financial institutions to back down and refund your money to avoid going to court.

Step 5: The judicial route (for high amounts)

If the bank flatly refuses and the accumulated amount is high, you can go to the courts of justice. For claims of amounts under €2,000, it is not mandatory to appear with a lawyer (abogado) or a court procurator (procurador), which makes the process much cheaper, although it is always advisable to have expert advice to draft the verbal trial (juicio verbal) lawsuit impeccably.

Mistakes to avoid when claiming against the bank

• Claiming purely verbally: Going to the branch to get angry with the manager or calling customer service over the phone leaves no legal trace. If you want results, everything must be registered in writing, with a date, stamp, or acknowledgment of receipt.
• Accepting trap agreements from the bank: It is common that, when they see you are serious, the branch manager will offer to refund only part of the money (for example, 50%) or offer you a financial product (such as insurance or a card) in exchange for withdrawing the claim. Do not sign anything containing clauses waiving future legal actions.
• Letting the statute of limitations pass: Although unfair terms are null and void by law and nullity does not expire, the claim for amounts improperly charged in successive tract contracts may be subject to limitation periods according to the interpretation of the courts (usually 5 years in the general civil field in Spain, although in cases of radical nullity of general contracting conditions, jurisprudence is more flexible). Claim as soon as possible to avoid debates on the prescription of the debt.
• Stopping the payment of fees on your own: If the bank charges you a fee you consider illegal, do not unilaterally decide to stop paying your mortgage or loan instalments as a protest. This would expose you to being included in defaulter registries (such as ASNEF or EXPERIAN) and to foreclosure proceedings. The correct path is to pay under protest and claim through the established legal channels.

Frequently Asked Questions (FAQ)

How much time do I have to claim back unfair fees from my bank?

The nullity of a contractual clause declared unfair for not complying with the Consumer Law does not prescribe; that is, you can request the nullity of the clause at any time. However, for the refund of the amounts already charged, the general limitation period for personal actions in Spain is 5 years (according to Article 1964 of the Civil Code). Nevertheless, if the contract is still active, many courts allow the recovery of amounts charged since the beginning of the contractual relationship.

Can my bank charge me a fee for having my account in the red?

The bank can charge you default interest for the negative balance (within the legal limits established so as not to fall into usury), but it cannot charge you an automatic flat fee (such as the typical fee for claim of debtor positions of €35) unless it proves that it has carried out effective, individualised claim management that has caused them a real, demonstrable cost. Since they almost never do this, these fees are systematically annulled by the courts.

Is it legal to be charged for the maintenance of an account I do not use?

If the account was opened exclusively to comply with the obligations of a main contract (such as paying a mortgage or receiving interest from a term deposit), and it was an imposition of the bank, it is not legal for them to charge you maintenance fees if the contract is prior to June 2019. For contracts subsequent to the 2019 Real Estate Credit Agreements Law, charging this fee is permitted provided that its cost was informed before signing the contract and this cost remains unchanged throughout the life of the loan.

What do I do if the bank puts me on a defaulters list for not paying an unfair fee?

If the bank includes you in a credit solvency file (such as ASNEF) for a debt that comes exclusively from a fee that you have formally claimed and that is in a dispute process, it is committing a serious infraction. According to the jurisprudence of the Tribunal Supremo, a client cannot be registered in a defaulters file for a debt that is not "certain, overdue, liquid, and enforceable". You could sue the bank for violation of the right to honour and request compensation for moral damages.

In summary

• Real and requested service: Bank fees are only legal if they correspond to a service effectively provided by the entity that has been requested or expressly accepted by the client.
• Illegal automations: Automatic fees for overdrafts or late payments (which usually range between €30 and €50) are unfair and void according to the Tribunal Supremo as they do not correspond to real collection management.
• Accounts linked to mortgages: Instrumental accounts opened obligatorily for the payment of loans contracted before 2019 must not bear maintenance fees according to the criteria of the Banco de España.
• Mandatory formal claim: The claim process must always be initiated in writing before the Customer Service Department (SAC) of the bank itself, never in a merely verbal manner at the branch.
• Appeal to the Bank of Spain: If the bank rejects your request or does not reply within 1 month, you can escalate your claim for free to the Banco de España to obtain a favourable report.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.