2023-09-29 13:05:32
The Attorney General of the Court of Justice of the European Union (CJEU) will predictably rule on January 18, 2024 regarding the ‘macro lawsuit’ for abusive floor clauses in mortgage loans presented by the Association of Users of Cajas y Seguros Banks (Adicae ) against 101 Spanish banks and savings banks.
It is noteworthy that The Advocate General’s opinions are not binding on the European Court, which will issue a ruling later.but in most cases their conclusions coincide with the final ruling.
In November 2010, the association presented against 44 banking entities, before the Commercial Court No. 11 of Madrid, a collective action for the cessation of floor clauses in variable interest mortgage credit contracts, in such a way that they limit the variation of interest rates on mortgage loans by imposing a minimum interest rate.
Besides, In that action, which was later expanded to 101 entities, it was requested that the banks be ordered to reimburse the amounts paid in application of these clauses. In total, 820 consumers appeared individually in support of Adicae’s claims, according to the European Court in a statement.
The claim was partially upheld in the first instance, except for three entities (BBVA, Abanca and Cajas Rurales Reunidas). Thus, the court declared the nullity of these clauses, ordered their suppression and the cessation of their use in a non-transparent manner, although it determined that the contracts in question remained in force.
The banking entities were also ordered to reimburse the amounts unduly collected in application of the aforementioned clauses as of May 9, 2013, the date of publication of Supreme Court ruling No. 241/2013.
At this point, it is worth remembering that The Supreme Court confirmed the abusive nature of the floor clauses, due to the lack of material transparency, and declared their nullity. However, based on the principle of legal certainty, limited the effects of his sentence from the date of its publicationso that only amounts unduly paid on the basis of said clauses after May 9, 2013 should be returned.
In this regard, the CJEU indicated in its ruling of December 21, 2021 that the Spanish jurisprudence that limits in time the effects of the declaration of nullity of the floor clauses contained in mortgage loan contracts in Spain is incompatible with the law. of the European Union.
For its part, The banking entities appealed the ruling of the court of first instance. The Provincial Court of Madrid rejected the majority of these appeals, but partially upheld Banco Popular’s appeal because it recognized the existence of res judicata, although it maintained the sentence to the return of amounts.
Subsequently, the banks decided to appeal to the Supreme Court, which, for its part, referred preliminary questions to the CJEU to clarify whether a collective action that boils down to an abstract control of a contractual clause is appropriate to examine the transparency of floor clauses. since this examination would require a concrete appreciation of all the circumstances surrounding the conclusion of the contract.
In the opinion of the Supreme Court, it is “extremely complex” to be able to conclude that a univocal transparency control can be carried out on these clauses when a collective action refers “to thousands of clauses prearranged by dozens of different banking entities, over a long period of time, subject to legislative changes in terms of their formulation and without the possibility of contrasting the pre-contractual information offered in each case to consumers”.
The Supreme Court also asks whether it is possible to characterize the average consumer, since although the jurisprudence of the CJEU refers to the average consumer who is normally informed and reasonably attentive and discerning, the level of attention and insight of a consumer may vary depending on legal data, of national or sectoral advertising requirements or even elements of the language used in the commercial information provided, which may mark a different requirement of informative diligence and warning in the consumer.
So, The Supreme Court considers that these floor clauses have impacted “very heterogeneous groups of consumers”, so it would be “very difficult” to adopt a criterion based on the concept of ‘average consumer’ when carrying out the examination of the transparency of the clauses.
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