The Court of the European Union has ruled that it considers contrary to the law EU national procedural rules that it considers “a hindrance” so that judges can investigate offending clauses and so that consumers can claim them before the courts within the framework of a mortgage contract.
the court is located in Luxembourg has indicated in its decision that national procedural provisions to comply with judicial protection “must follow the principle of efficacy” and concluded that “if there is no effective control” the abusive nature of the clauses of the contract, To be respected cannot be guaranteed. community law.
high Court The European Union recalls in its decision that the protection system of European regulations establishes that the consumer is “in a position of inferiority with respect to the professional”, both in terms of negotiating capacity and level of information, which it grants that these The offending clause “shall not compel the consumer”.
In addition, the opinion of the European Justice indicates that European and national law should establish “appropriate and effective means to prevent the use of abusive clauses” and if not so “effective control» The rights of the European Directive of the «potentially abusive nature of the clauses of the contract» cannot be guaranteed.
The ruling refers to two judicial proceedings, one issued at the request of Zaragoza Provincial Court One executed in 2005 in the case of a consumer with mortgages contracted with Ibercaja and executed in 2015 and the other issued at the request of the Spanish Supreme Court in relation to a dispute between a consumer and. Unicaza Bank For a mortgage contract that established a “floor clause” according to which the variable rate cannot be less than 3%.
The first case refers to the claim of payment of interests Mortgage is payable to Ibercaja by a consumer for not complying with loan payments. The consumer alleges the default interest clause and the defamatory nature of the floor clause, a contract that was examined at the start of the foreclosure process.
After an auction without bidders, the mortgaged property was given to Ibercaja Banco, who transferred it to the company. residential murillo, In 2016, Ibercaja requested a liquidation of interests to the consumer, to which it resisted claiming that certain clauses of the contract were “abusive”.
post judge exam
The main question raised is whether Legislation The union opposes the “judge investigating the abusive nature of contractual clauses at a later stage of the process, which were the subject of initial ex-officio control by the court”, but that “not clearly reflected in the decision authorizing foreclosure”. It happens .”
court of justice The European Union has pointed out that the central law opposes national law that “due to the effect of the rescuedicata and ex-conclusion” does not allow a judge to examine “ex-officio” whether clauses of the contract are defamatory in the context of a foreclosure. Whether or not to appeal to the consumer the “abusive nature of the above clauses”.
In this sense, it indicates that there is “no reason” in the judicial resolution of this foreclosure to prove that this examination has been made. Since the foreclosure has ended and the property rights have been transferred, the judge can no longer perform that examination on the offending clauses of the contract. thus EU Court of Justice Indicates that the consumer should be able to apply a separate and subsequent procedure to receive compensation for economic damage caused by these clauses.
The European High Court recalls that the protection system of European regulations establishes that the consumer is “in a position of inferiority compared to the professional”.
The second case refers to the claim filed by the consumer. Unicaza Bank In which he requested the voidability of the offending clause “due to lack of transparency” in a mortgage contract in which the variable rate could not be less than 3%.
Spanish Supreme Court consulted EU Court of Justice On compatibility between national law and European law in an appeal, following a decision that limited in time to “the amount improperly paid by the consumer as a result of a clause declared unreasonable” it is possible to investigate “ex-officio” Not there. “Violation of the European Directive and the decree for the full restoration of those amounts.
Court believes that the right of ui It opposes the “application of national procedural principles” whereby a national court cannot “examine” a decision that limits the timely restoration of these payments and limits them to the amount paid by the consumer. .
EU court rules against “obstructions” of Spanish justice in floor clause