The European Justice has ruled this Tuesday against the Spanish procedural "obstacles" to review abusive clauses. This has been established by the Court of Justice of the EU in several judgments published this Tuesday. “In relation to abusive clauses in contracts concluded with consumers, national procedural principles cannot be an obstacle to the rights that Union Law confers on defendants. The principle of effectiveness requires an effective control of the potentially abusive nature of the clauses”, says the court.
Through its judgments on Tuesday, the Court of Justice ruled on several requests for a preliminary ruling filed by Spanish, Italian and Romanian courts, relating to the interpretation of the directive on unfair terms in contracts concluded with consumers.
The Court of Justice is asked whether national procedural principles, such as the force of res judicata, may limit the powers of national judges, in particular enforcement, to assess the potentially unfair nature of contractual terms.
Are principles of domestic procedural law compatible that do not allow such assessment in the area of enforcement, even ex officio by the judge hearing the enforcement, due to the existence of prior national court decisions?
In this regard, the Court of Justice recalls the importance of the res judicata principle both in the Union legal order and in national legal orders.
Thus, in order to guarantee both the stability of the law and of legal relations, as well as the correct administration of justice, it is necessary that judicial decisions that have become final after the available remedies have been exhausted or the time limits have expired cannot be challenged. deadlines set for the exercise of those resources.
Having said this, first of all, the Court of Justice recalls that the protection system established by the directive is based on the idea that the consumer is in a situation of inferiority compared to the professional, both in terms of negotiating capacity and at the information level.
Given this situation of inferiority, the directive provides that unfair terms will not bind the consumer. This is a mandatory provision that seeks to replace the formal balance of the contract with a real balance.
Secondly, the Court of Justice notes that the national court must assess ex officio the abusive nature of a contractual term included in the scope of application of the directive and that the Member States are obliged to establish adequate and effective means to stop the use of abusive clauses.
In principle, Union law does not harmonize the procedures applicable to the examination of the allegedly unfair nature of a contractual term and, therefore, it is up to each Member State to establish such procedures in its internal legal order.
National procedural provisions must observe the principle of effectiveness, that is, comply with the requirement of effective judicial protection.
In this regard, the Court of Justice considers that if there is no effective control of the potentially abusive nature of the clauses of the contract in question, the respect of the rights conferred in the European directive cannot be guaranteed.
The petition was filed in the context of a dispute between L and Banco de Caja España de Inversiones, Salamanca y Soria, SAU, in whose rights Unicaja Banco, SA was subrogated, in relation to the lack of ex officio examination by the national judge of appeal of a plea alleging non-compliance with Union law.
The bank granted L a mortgage loan. Said contract established a “floor clause” by virtue of which the variable rate could not be less than 3%.
L filed a lawsuit against said banking entity, in which he requested the annulment of that clause and the restitution of the amounts unduly received, considering that the clause should be declared abusive due to lack of transparency.
The first instance judge upheld the claim, limiting the restitution effects in time in accordance with national jurisprudence.
The appeal judge, before whom the bank went, did not agree to the full restitution of the amounts received by virtue of the “floor clause”, because L had not filed an appeal against the sentence handed down in first instance.
Under Spanish law, if a ruling is not challenged by any of the parties, the appellate court cannot rescind or modify it. This norm presents similarities with res judicata. Therefore, the Spanish Supreme Court asked the Court of Justice of the EU about the compatibility of national law with Union law, in particular regarding the fact that a national court hearing an appeal against a judgment that limits in time the restitution of the amounts unduly paid by the consumer as a result of a clause declared abusive cannot examine ex officio a reason based on the infringement of the directive and order the full restitution of those amounts.
Recalling its jurisprudence, the Court of Justice of the EU reaffirms that Union law is opposed to a national jurisprudence that limits the restitution effects in time and limits them exclusively to the amounts unduly paid in application of an abusive clause after the pronouncement of the judicial resolution by which this abusive character was declared.
Likewise, the Court of Justice considers that the application of the national procedural principles in question may make the protection of those rights impossible or excessively difficult, thus violating the principle of effectiveness.
Indeed, Union Law is opposed, says the ruling, to the application of national procedural principles by virtue of which a national court hearing an appeal against a judgment that limits in time the restitution of amounts unduly paid by the consumer as a result of a clause declared abusive cannot examine ex officio a reason based on the violation of said provision and order the full restitution of those amounts, when the lack of challenge of such limitation in time by the affected consumer cannot imputed to a total passivity of this.
The petition was filed in the context of a dispute between MA and Ibercaja Banco, SA, in relation to a claim for payment of interest owed to the banking entity due to the non-execution by MA and PO of the mortgage loan agreement entered into between said entities. parts.
The competent court ordered the foreclosure of Ibercaja Banco's mortgage title and sent foreclosure against consumers.
MA invoked the abusive nature of the clause relating to default interest and the ground clause only in the foreclosure procedure, specifically after the auction of the mortgaged property, that is, when the effect of res judicata and estoppel do not allow the judge to examine ex officio the abusive nature of the contractual clauses nor to the consumer invoke the abusive nature of said clauses.
The contract was examined ex officio at the beginning of the foreclosure procedure, but the examination of the controversial clauses, however, was not expressly mentioned or motivated.
According to the Court of Justice of the EU, Union law is opposed to national legislation which, due to the effect of res judicata and estoppel, does not allow the judge to examine ex officio the unfairness of contractual terms in the framework of a mortgage foreclosure procedure nor to the consumer, after the term to formulate opposition, invoke the abusive nature of the aforementioned clauses in that procedure or in a subsequent declaratory procedure when the judge has already examined ex officio the possible abusive nature of said clauses but the resolution judgment in which foreclosure is dispatched does not contain any reason, even a brief one, that proves the existence of that examination nor does it indicate that the assessment made by said judge at the end of that examination can no longer be questioned if no opposition is filed within the aforementioned term.
However, when the foreclosure procedure has concluded and the property rights have been transferred to a third party, the judge can no longer proceed to an examination of the abusive nature of contractual clauses that would lead to the annulment of the acts of transmission of the property. ownership and question the legal certainty of the transfer of ownership already made to a third party.
However, in that situation, the consumer must be able to invoke, in a separate subsequent procedure, the abusive nature of the terms of the mortgage loan agreement in order to be able to effectively and fully exercise his rights under the Directive, in order to obtain the reparation of the economic damage caused by the application of said clauses.
In other words, Luxembourg comes to say that when it has been sold to a third party (that third party can be vulture funds of the banks) you can no longer claim abusive clauses in foreclosures (procedure in which the home is lost) if not judge ex officio, and you have to go to a new procedure.