A Sevillian lawyer is proposing in different lawsuits of abusive clauses to the judges of First Instance that they raise a question for a preliminary ruling to the Court of Justice of the European Union (CJEU), when considering that there certain aspects of abusive clauses that were not resolved by the Supreme Court in its resolutions, such as who pays the tax on documented legal acts and 50% of notary fees in relation to mortgage loans.
The lawyer Francisco Tejada, who is raising these questions, considers in some of these claims that, since the binding offer had not been delivered, it would be appropriate to ask the CJEU for a preliminary ruling, for various reasons. First of all, the lawyer points out that If the Court has doubts about said arguments and understand that “the hidden floor clauses that establish the differentials added to the Euribor of 1% or 0.90%, while the ceiling is 13% would not be sufficiently specified to be considered abusive, a preliminary question should be raised with the Court of Justice of the European Union”, in which he is asked, among other considerations, “if the clauses where said differentials added to the reference rate are established can be considered contrary to what is in article 3.1 of Directive 93/13/ EEC of the Council, of April 5, 1993, on abusive clauses in contracts concluded with consumers, given that it establishes the guiding principle in defense of the consumer, especially taking into account the aforementioned lack of delivery of the offer binding”.
Secondly, Francisco Tejado continues, the aforementioned initiative before the CJEU would also be based on what the European court ruled in the Judgment of July 16, 2020, “where he said that the national judge cannot deny the consumer the return of the amounts paid under the clause declared null for abusiveunless the provisions of national law applicable in the absence of said clause (which has not existed because it was null) impose on the consumer the payment of all or part of those expenses”.
The lawyer points out that there are “two contradictory doctrines of a Chamber divided into two groups of magistrates and magistrates, which make there is no clear, precise and determined opinion on who should be responsible for paying the tax on documented legal acts and notary expenses”.
Furthermore, in the domestic legal system “there is no regulation that shares the same criteria that have been indicated in the previous section, that is, clarity, precision and determination in the regulation on who would pay the aforementioned tax and the aforementioned expenses in the notary’s bill”, he asserts.
The lawyer understands that “it would be appropriate to ask the CJEU for a preliminary ruling, and not only for the reasons that Judge José Manuel Bandrés Sánchez-Cruzat issued in the dissenting opinion of the Supreme Court ruling of November 27, 2018”, but also to “know if the clauses that are included in the mortgage loans documented in the deeds and through which the obligation of the borrower to pay the aforementioned Tax is established, with a regulation in article 29 of the LITPAJD plittle precise, much less clear and that has been criticized both by the Scientific Doctrine, as by the Jurisprudence, could be considered abusive”.
For the lawyer, the same considerations “could be transferred to the expenses of the notary, given the regulation that in art. 63 Notarial Regulation, which refers to the sixth rule of Annex II of RD 1426/1989, of November 17, establishes that the interested party must bear them. And it could be considered that given the vagueness of the legal regulation, likewise, the expense clauses where my client is imposed to pay them could be abusive”, the lawyer collects in one of the briefs presented in the First Instance courts of Seville.