The TUE lawyer guarantees the agreements with the banks on land clauses if the client understands them - La Provincia

TheGeneral Counsel of the Court of Justice of the European Union(TUE) Henrik Saugmandsgaard has endorsed on Thursday the agreements between banks and their clients to modify downwards a floor clause of a mortgage contract as long as the latterunderstand what the economic consequences areof maintaining this type of clause.

It is, in any case, some conclusions thatthey are not bindingfacing the future ruling of the Court, but the lawyer thus responds to the preliminary ruling raised by a court in Teruel on an issue facing a consumer with Ibercaja in relation to an abusive clause of a mortgage loan subrogation contract.

A real estate developer signed a loan extension agreement with Ibercaja in 2010 for the construction of a property that contained a clause that established that the annual interest rate could not exceed 9.75% or be less than 3.25%. A year later, the real estate developer and the consumer entered into a contract to sell the building with subrogation of the mortgage loan in favor of Ibercaja.

But in 2014, Ibercaja and its client signed a novation contract that provided that the variable interest rate could not be less than 2.35%. In addition, the two parties waived to take legal action or to resort to the clauses contained in the contract.

Theclient went to justice to declare the ground clause voidprovided for in the 2011 mortgage and the refund of the amounts received by Ibercaja under it from the moment of subrogation. The entity rejected that the clause was void because the consumer had been informed of its existence before the signing of the contract.

Thus, the Advocate General proposes to the TUE that in his future judgment he declares that European standards guarantee that a bank and its client can modify abusive clauses by means of a subsequent agreement confirming the validity of the initial contract and by which they waive legal action.

However, he adds that the European directive does not preclude that these types of agreements have a binding effectiveness "as long as there is free and informed consent" of the client.

Client inferiority situation

The lawyer explains that"can't lose sight"the "inferiority situation" of a consumer with respect to a financial entity or "ignoring" the risk of giving up legal action against an abusive clause. This situation of inferiority, he says, must be compensated by a "positive intervention" of a judge.

Specifically, this "positive intervention" means that a judge must check, even ex officio, if the resignation is the result of a"free and informed consent" of the clientor "of an abuse of power." This end implies, on the other hand, to check if the clauses of the contract have been negotiated individually and if all the transparency requirements have been fulfilled.

In this regard, Attorney General Saugmandsgaad explains that a clause cannot be considered the result of an individual negotiation if the consumer "has not had the real possibility of influencing its content".

If the court that analyzes a novation ofground clausesdetermines that it was not negotiated individually, the following would be to examine the validity of the clause of mutual renunciation of the exercise of legal actions.

At this point, the lawyer proposes to rule that a clause of mutual renunciation of the exercise of legal actions that has not been subject to an individual negotiation is abusive "except when stipulated in a contract whose purpose is to resolve a dispute between the consumer and the consumer. professional".

However, he adds that even in this casea clause must meet the transparency criteriawhich establishes the community directive. And this is so when the consumer "is in a position to understand the economic consequences that arise" from said clause.

Understanding the economic consequences of a clause implies, finally, that the consumer is "aware of the possible vice that affects the new clause, of the rights that could be enforced in that regard, of the fact that he is free to sign said contract or refuse to this and to resort to the judicial route and that once said clause is agreed, it will no longer be able to do so.