The Association of Financial Users (Asufin) has denounced the Kingdom of Spain before the EU for the action of the Supreme Court that “repeatedly and systematically contravenes Community jurisprudence on consumer protection.” Asufin, a member of the European consumer organizations with more than 15,000 members, believes that the high court hinders and slows down claims by acting, in practice, in favor of the banks.
The action of the Supreme Court has filled the patience of the associations for the defense of financial consumers. In a long and detailed report, based on a compilation of Supreme Court decisions, the association chaired by Patricia Suárez presents its arguments against the First Chamber of the highest Spanish court.
The letter states that “the Spanish Supreme Court has been undermining the principle of transparency and with it the rights of Spanish consumers, especially users of financial services.”
In his argumentation, he recalls the problems that have arisen in Spain since 2010 because “financial institutions had massively marketed complex products to retail customers and non-transparent clauses in mortgages and loan contracts.”
The eternal journey of claiming in Spain
It describes how consumers “began a journey to complain, first before the entities, then before the regulator (Bank of Spain) and, finally, in the absence of binding resolutions from the supervisor and the lack of alternative mechanisms for the resolution of the conflict, against to the courts ”.
They assure that in Asufin they have compiled “almost 10,000 court decisions” that are mostly favorable to consumers. However, and here is an argument of the complaint, the action of the Supreme Court, has caused those affected to have suffered “a long and complicated road”, which on many occasions has prevented them from recovering their money improperly collected by the banks.
The association recalls that the number of claims made by consumers to banks has grown exponentially. For this reason, he says, in May 2017 the Spanish Government approved the creation of 54 courts specialized in mortgage clauses “that aimed to speed up the resolution of these conflicts. However, the Government did not provide material and human resources to these courts, for which they have turned out to be totally inoperative ”.
And it affirms that after more than three years since its creation, “41.3% of the entered cases have been resolved and 255,247 remain unresolved according to the statistics of September 2020.” They consider that this situation “has aggravated the situation of consumers trapped in these courts.”
Thousands of families trapped in locked courts
And he points out that the origin of this problem was “the erroneous decision of the Supreme Court” that “has assumed, as documented in the jurisprudence maps, the legal insecurity and the anguish of thousands and thousands of Spanish families together with the creation, no less, of those special ground clause courts that, to this day, still give trial dates in the first instance for 2024! “
Faced with this situation, in the first place, they denounce that the Supreme Court “has not resolved the matters respecting the criteria of the Court of Justice of the European Union (CJEU), therefore it has not offered legal certainty.” This has led to numerous discrepancies in the different judicial venues “which has caused Spanish judges to have been forced to raise up to 88 preliminary rulings on consumer protection between 2010 and 2019”.
The CJEU has corrected “on numerous occasions the judgment of the Supreme Court, which has caused many consumers who received a final dismissal sentence, in application of those incorrect postulates of the Supreme Court, to lose the opportunity to recover the money paid in excess due to an incorrect interpretation of the European directives ”.
“The Supreme, increasingly in favor of the banks”
For Asufin, it is “surprising” that the Supreme Court “has rarely considered it necessary to raise a preliminary ruling, despite the fact that it has openly departed from what was stated by the CJEU.” The complaint cites the 12 major contradictions of the Spanish court against European justice. Remember the one known from 2015 when it determined that the floor clauses were abusive and void, but only as of May 9, 2013 to avoid a collapse of the financial system. Suárez considers that, with the passage of time and the renewal of some positions, “the Supreme Court acts, more and more, in favor of the banks”
For all these reasons, it requests that the EU “adopt all the necessary measures to correct the infractions committed by the Supreme Court” and sanction Spain.
It also asks that “the IRPH reference index be suppressed, leaving the loan interest-free as allowed by the Spanish legal system and restoring the amounts paid in excess so far.” Another request is that a regulation be reestablished that orders, “retroactively for mortgage loans to recover all expenses unduly paid.” And that the Supreme Court be obliged “to correct its doctrine by adapting to the jurisprudence of the CJEU in favor of consumers.”