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European justice opposes ‘obstacles’ for Spanish courts to reinstate floor provisions

European Court of Justice ruled on Tuesday to review the offensive points against Spain’s procedural “obstacles” and, therefore, to support the return of the offensive points. This has been established by the European Court of Justice in several judgments published this Tuesday. “National procedural principles in relation to offensive articles in consumer contracts may not be an obstacle to the rights conferred on defendants by Union law. “The principle of effectiveness requires effective control of the potentially offensive nature of the points,” the court said.

On Tuesday, the Court of Justice ruled in favor of a preliminary ruling by the Spanish, Italian and Romanian courts on the interpretation of the Directive on unfair terms in consumer contracts.

The Court of Justice is asked whether national procedural principles, such as res judicata power, can limit the powers of national judges, especially enforcement, to assess the potentially unfair nature of contractual terms.

Are the principles of domestic procedural law compatible, which do not provide for such an assessment in the field of enforcement, even by an executive review judge due to the existence of national court decisions?

In this connection, the Court of Justice recalls the importance of the principle of res judicata in both the legal order of the Union and the national legal order.

Thus, in order to guarantee the stability of the law as well as the legal relationship, as well as the proper administration of justice, court decisions are necessary, which become final after the expiration or expiration of the remedies available. To appeal.The deadlines set for the use of those resources.

Having said that, first of all, the Court of Justice recalls that the protection system established by the Directive is based on the idea that the consumer is at a disadvantage compared to a professional, both in terms of negotiation skills and information. level.

In view of this situation of inferiority, the Directive provides that unfair terms do not bind the consumer. This is a mandatory provision aimed at replacing the formal balance of the contract with the actual balance.

Second, the Court notes that the national court must ex officio assess the offensive nature of the contractual term in the field of application of the Directive and that the Member States are obliged to determine adequate and effective means of suspending the use of the offense. Points.

In principle, Union law does not harmonize procedures for examining the alleged unfair nature of contractual terms and, therefore, it is up to each Member State to lay down such procedures in its domestic law.

National procedural provisions must adhere to the principle of efficiency, ie comply with the requirement of effective judicial protection.

In this regard, the Court of Justice considers that unless there is effective control over the potentially offensive nature of the provisions of the treaty in question, the protection of the rights conferred by the European Directive will not be guaranteed.

Unicaja Bank

The petition was filed in the context of the dispute between L and Banco de Caja España de Inversiones, Salamanca y Soria, SAU, whose rights were subordinated to Unicaja Banco, SA, due to the lack of ex officio expertise by a national judge. Complaint about non-compliance with procedural law.

The bank gave L. a mortgage. The agreement stipulates a “floor point”, according to which the variable rate can not be less than 3%.

L. filed a lawsuit against the aforementioned banking entity, requesting the repeal of this article and the refund of overpaid amounts, given that the item should have been declared offensive due to non-transparency.

The judge of the first instance upheld the claim, limiting in time the restorative effect in accordance with national jurisprudence.

The appellate judge before which the bank went did not agree to a full refund of the funds received under the “floor clause” because L had no appeal against the first-instance sentence.

Under Spanish law, if neither party appeals the decision, the Court of Appeal cannot overturn or change it. This norm bears a resemblance to res judicata. The Spanish Supreme Court has therefore asked the European Court of Justice to rule on the compatibility of national law with the Union law, in particular the fact that the national court is reviewing an appellate decision limiting the timely refund of overpayments. Payment made as a result of an offense declared by the user may not ex officio consider the reason for the breach of the Directive and order a full refund of these funds.

Recalling its jurisprudence, the EU Court of Justice reaffirms that Union law is contrary to national jurisprudence, which restricts the effects of restitution in a timely manner and limits them to the use of an exclusively offensive article after a judgment has been announced. By which this violent character was declared.

Similarly, the Court of Justice considers that the application of the national procedural principles in question may make it impossible or overly complicated to protect these rights, thereby violating the principle of effectiveness.

Indeed, federal law precludes the application of national procedural principles by virtue of which a national court will review an appellate decision that limits the timely return of money unreasonably paid by a consumer as a result of a clause. A person declared abusive may not investigate a reason based on a violation of the above provision ex officio and order a full refund of these funds when the timely challenge of such restriction by the aggrieved user can not be attributed to complete passivity.

Iberkaja Bank

The lawsuit was filed in the context of a dispute between MA and Ibercaja Banco, SA over a breach of a mortgage agreement between MA and PO over a claim for interest on a banking entity. Mentioned persons.shares.

The competent court ordered the deprivation of the mortgage right of Ibercaja Banco and enforcement against the consumers.

M.A. named the offensive nature of the item, which relates to default interest and a sound provision only in the foreclosure procedure, specifically after a mortgaged property auction, i.e. when res judicata and estoppel do not authorize a judge to examine any contractual property in the former office. The user may request the offensive nature of these items.

The contract was considered at the commencement of the forced detention procedure in the office, but the examination of the disputed points was not explicitly mentioned or motivated.

According to the Court of Justice of the European Union, Union law is contrary to national law, which, because of its res judicata and estoppel effect, does not entitle a judge to examine ex officio the terms of an unfair mortgage under contract terms. Neither the procedure nor the consumer, after the expiration of the objection period, should use the offensive nature of the above points in this procedure or in the subsequent declaratory procedure when the judge has already examined ex officio the possible offensive nature of the above points, but the decision Which seizure was sent does not contain any reason, even a brief one, which confirms the existence of this expertise, nor does it indicate that the assessment made by that judge at the end of this expertise can no longer be questioned if no objection is raised within the above. Term.

However, once the foreclosure procedure has been completed and the ownership has been transferred to a third party, the judge can no longer continue to examine the offensive nature of the contractual provisions, leading to the annulment of the property transfer acts. Owns and questions the legal validity of the transfer of already implemented property to a third party.

However, in this situation, the consumer should be able to use the offensive nature of the terms of the mortgage loan agreement in a separate follow-up procedure in order to be able to effectively and fully exercise his or her rights under the Directive. To obtain compensation for the economic damage caused by the use of the above points.

That is, Luxembourg says that once it has been sold to a third party (this third party may be the vulture funds of the banks), it is no longer possible to claim offensive points on the seizure (the procedure in which the house is lost.)

Source: El Diario





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