Forcing the bank to repay everything overpaid for a floor clause if the procedure is still alive, even when the consumer has not claimed it. That is what the EU attorney general considers that the Spanish courts should do, according to the conclusions presented this Thursday and signed by lawyer Evgeni Tanchev. The Court of Justice of the European Union (CJEU) must rule on the matter in a future ruling after receiving a preliminary ruling from the Spanish Supreme Court. Although the general counsel’s findings are not binding, in most cases they are usually aligned with the subsequent ruling.
The facts analyzed, according to the question referred to the Luxembourg Court by the Supreme Court, refer to a consumer who contracted in 2006 a mortgage with Banco CEISS (later absorbed by Unicaja) and who in 2016 claimed the amounts overpaid for a floor clause . These provisions, which in many cases like this were introduced into the mortgage contracts in a manner considered abusive, prevented the loan installments from becoming cheaper even if the calculation differential fell. A court of first instance of Valladolid agreed with the borrower and ordered the nullity of the floor clauses of the contract and the reimbursement of the overpayment, but only since May 9, 2013. As that was the doctrine that the Supreme Court had determined at the time, the consumer did not claim.
But the bank did so because it did not agree with the ruling on costs. He filed an appeal in July 2016. In December of that same year, the CJEU ruled that the Supreme Court’s doctrine was contrary to Union law and that everything overpaid for the clauses from the beginning of the mortgage had to be returned. But the sentence of the Provincial Court of Valladolid, in January 2017, did not mention that ruling and was limited to a pronouncement on the judicial costs, in which it agreed with the entity.
This time it was the bank customer who was not satisfied. In cassation, he took the matter to the Supreme Court, which has asked the CJEU if principles such as justice requested are applied in these types of cases, which prevents a court from granting a party something that had not been requested and was supposedly settled in the first instance . The attorney general states that “it is difficult to reproach a consumer for not having filed an appeal or not having challenged the judgment of first instance” when the doctrine established by the Supreme Court at the time “would not have allowed him to see his claims upheld.” And it considers that the principle of effectiveness must prevail, which prevents Justice from making it difficult for a European consumer to exercise their rights. That is why he believes that, while the judicial procedure is still alive, the Spanish court must ex officio order the full restitution of the amounts in accordance with what is currently determined by the legal doctrine that applies to floor clauses.
Javier de la Torre, from the firm Independencia 23 Abogados, believes that the conclusions are “good news” for consumers, although we will have to wait to see if the sentence follows the same line. The lawyer explains that the principle by which the Supreme Court asks is different from that of res judicata, which prevents ruling a second time on a closed matter, but points out that there are “many cases” in which the procedure is still alive due to the enormous litigation .
In cases already settled, the partner of the Zaragoza office, which has a hundred cases of floor clauses, points out that the future sentence has no influence. Although remember that these also have a small possibility if in the initial lawsuit they did not claim all the money overpaid but only the one paid since May 2013. Some consumers have requested the previous amounts in a new procedure, something about which “there is case law contradictory ”because some judges have considered it while others reject it as res judicata. De la Torre considers that the first interpretation will prevail and believes that the defense of the principle of effectiveness made by the EU Advocate General reinforces that point of view.