The CJEU lawyer considers that the abusive amounts of a mortgage can be returned ex officio


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New twist in the cases of abusive clauses incorporated into mortgages by banks in Spain. The Advocate General of the Court of Justice of the European Union (CJEU) considers that the Spanish justice can decide ex officio the return of the amounts unduly paid by a consumer to the bank as a consequence of an abusive mortgage clause even if an appeal has not been expressly submitted for it The lawyer also opens the door to restore in its entirety and from the beginning – that is, since before 2013 – what is overpaid by consumers. The lawyer’s conclusions, which are not binding but usually coincide with the final sentence, further indicate that national procedural principles cannot be applied in a way that blocks the right of consumers not to be bound by an abusive clause.

In this way, the previous conclusions “recall that if a clause has been declared void, the situation in which the consumer would have been if it had not existed must be reestablished.” “It is necessary to consider that the national procedural principles in question go against the principle of effectiveness, since they make it impossible or excessively difficult to guarantee the protection that Article 6 (1) of Directive 93/13 confers on consumers”, he assures the attorney general in his brief.

From Asufin they explain that these considerations go much further and place consumer protection ahead of the procedural rules of our country. Thus, they remember that although the consumer in question did not appeal the ruling that obliged the bank to return the amounts as of 2013, the case reached Europe because the bank claimed the costs. “The Luxembourg lawyer establishes that the entire case should be reviewed, rejects the judgment of the Supreme Court, and obliges to pay back in its entirety, and from the beginning the overpaid. That is, if the judgment of the CJEU is confirmed in this direction, our country will be obliged to review the law of Civil Procedure “, they indicate from the association for the defense of banking users.

The case dates back to 2009, when a Spanish consumer signed with Banco Ceiss, which was absorbed by Unicaja, a mortgage with a floor clause declared void a posteriori by a judge, who ordered the bank to return the amounts paid in excess by this clause as of May 9, 2013. After the ruling, Banco Ceiss appealed to the Provincial Court of Valladolid, but only the part that ordered it to pay the costs of the process.

Already in December 2016, the CJEU ruled that all clauses considered abusive should be declared void and, therefore, all that was unduly paid be reimbursed from the date the invalidity was declared and not only as of May 2013, as the Spanish Supreme Court had established.

In addition, the provincial court upheld Ceiss’s appeal in 2017 and annulled the payment of the costs, but did not touch the sentence in the part that referred to the return to the consumer. Consequently, the user appealed to the Supreme Court and argued that the Provincial Court should have taken into account European jurisprudence and ex officio requested the return of all the money.

In this case, the Supreme Court decided to ask the CJEU if it can order full restitution ex officio contrary to national procedural principles that could be considered to prevent it, such as those of requested justice, congruence and prohibition of “reformatio in peius”.

All in all, the General Advocate’s conclusions are, for the moment, a “bittersweet victory”, considers Patricia Suárez, president of Asufin. “It is an injustice that so many consumers have stayed by the wayside and that they have not been able to recover their money, when the judges, ex officio, should have returned those amounts in 2016, as a result of the Gutiérrez Naranjo case.” However, we will have to wait for the sentence to see the scope and if it is allowed to review court cases or it can only be applied to open cases.

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