The civil chamber of the Supreme Court has decided to submit to the Court of Justice of the European Union a macro-demand raised by ADICAE on behalf of thousands of Spaniards affected by floor clauses against more than 40 banks and savings banks. Some of the parties had proposed to refer a question to the CJEU for a preliminary ruling, which has recently reinforced its doctrine on the right of consumers to recover all their money for these clauses.
The European Justice rules against the "obstacles" of the Spanish courts to return the floor clauses
The room, finally, has decided to leave the case in the hands of Luxemburg. The questions raised by the first room have to do, above all, with the possibilities of managing a macro-demand like this: it asks, for example, if it is possible to carry out the "abstract prosecution" of thousands of cases of different banks "without take into account the level of pre-contractual information offered on the legal and economic burden of the clause, nor the rest of the concurrent circumstances in each case, at the time of contracting”.
It also asks if this type of judicial analysis can be carried out "when several of the contract offers are addressed to different specific groups of consumers" or also when the lawsuits affect different banks in different contexts and over long periods of time. In this case, according to ADICAE, there are around 9,000 people represented.
The plenary session of the first chamber has been studying for weeks the sentence of the Madrid Court that agreed with thousands of those affected by these abusive clauses and ordered the banks to return all the money collected irregularly. Not only from 2013, when the Supreme issued its first ruling on these clauses.
The judges explain that, in the last year, the CJEU itself has concluded that European directives protect "all consumers and not just the average consumer, normally informed, reasonably attentive and insightful." But this, say the judges of the civil court, "does not mean that, for the prosecution of the abusiveness of a clause in a collective action, the concept of average consumer should not be used as a standard."
In this case, the macro-demand promoted by ADICAE led the Madrid Court to resolve a wide variety of cases. The Supreme Court understands that there is sufficient jurisprudence to study any type of assumption of the existence of abusive clauses, and to know if they are not very transparent, but until now it has been done “from an individual perspective, in which the relevant information in the case has been assessed. concrete".
For this reason, the Supreme Court understands that managing the case through a macro-demand that affects thousands of different people can be problematic: “The grouping of all the cases in a single collective action makes it very difficult to adopt a criterion based on the concept of average consumer,” he explains.
The civil chamber of the Supreme also sees problems when executing a sentence of these characteristics, because not only is the nullity of the floor clause of each mortgage called for, but also that the banks return the amounts that they have overcharged and in a improper. In that case, the Spanish Civil Procedure Law urges that it be the sentence that establishes the scales to be able to demand payment, but it would be a "generic determination that is also extremely difficult when it is the determination of the average consumer", says the Supreme.