The extraordinary, relevant and dramatic of the three sentences stitched by the Supreme Court (TS) in its very recent marathon is that they are paperless. They will not rule.
Even before being drafted, the executive branch, allied with the legislature, will deprive them of practical support. While the judges write the retribution to the clients of the payment of the tax of legal acts documented (AJD), the others are advanced in the opposite direction.
A new norm validated by the Congress will attribute to the bank, from now on, the cost of the tribute. PP and C's have joined, fast this time, to what José María Aznar said was legal populism. Never a sequence like this contributed to a greater disrepute of a constitutional power.
Neither did the reaction of others end up saving the system of checks and balances of Spanish democracy: with its successes and failures. Of course, the chain of errors was not initiated by the judges.
The EU approved in February 2014 the directive 2014/17 on consumer protection in real estate contracts. And in four long years (four!), The Government of Mariano Rajoy was unable to transpose -translate to the local norm- that directive. What it meant to reform the old mortgage law. Spain was in 2016 and 2017 at the bottom to comply with European law.
If it had been complied with, incorporating the jurisprudence of the Court of Justice of the EU (CJEU), which overwhelmingly protects consumers (as in the ruling of the ground clauses, of 12/21/2016), the TS would not have had occasion to to err, to hesitate or to capsize.
So now, the law of the tax (article 29), and consequently the controversial article 68.2 of the regulation (annulled and then resurrected by the TS), returns to pass away. The decree amends the flat of the TS and appoints the passive subject of the mortgages (the pagan) to the bank, to which this was already resigned.
The question of retroactivity will remain pending. Well, only one of the client associations, Adicae, has already filed 83 collective actions. Some will arrive at the Luxembourg court.
And against what conspicuous economists – but less savvy jurists / theoreticians of the 30 Years war – think, the option of unlimited retroactivity would not be based on the injustice of a regulation (obligatory and, therefore, liberating), but on the clauses abusive by its application to all expenses / taxes thus qualified by several judgments (such as STS 148/2018 of 15/3). There will be time for the final verdict.
The extraordinary thing is also the degree of intellectual autarky of many of our toga. Only two have referred to the convenience of consulting Luxembourg, although with different motive and purpose.
They are Dimitry Berberoff, in his 16/10 private vote, on how to apply the sixth VAT directive. And José Manuel Bandrés, on how to interpret consumer protection directives. Only 2 of the 28 are interested in the opinion of the European hierarchical superior who will settle the rest of the matter and to which they must obey?