The Supreme Court decided to request the European Justice for a definitive and general ruling on the conflict between the floor clauses the bank applied up until a decade ago to millions of mortgages. These clauses limited the amount of interest entities could charge customers, regardless of whether or not the Euribor was positive. When the High Court doubts whether a Spanish ruling can clarify this “abstract” issue, it has asked for a preliminary ruling from the Court of Luxembourg. This includes all mortgage deeds, conditions and contracts, as well as heterogeneity of casuistry, such that the conflict is covered.
The Supreme Court’s doubts, which have raised this question to the CJEU for a preliminary ruling, are focused on whether the Civil Chamber is supported in determining such an abstract ruling in a collective action (the macro demand presented by many organizations such as Adicae with Clauses used in more than one hundred financial entities in millions of banking contracts. This does not take into account the precontractual information on the economic and legal burden of the clause nor any other concurrent circumstances in each case at the time of hiring.
The Supreme Court took the case to Luxembourg Court because it was too complex for him to say that a transparent control on similar clauses can be achieved. According to the European directives, it is necessary to examine the contractual relationships of individuals in order for transparency control to be performed on banking contracts.
It also ignores the possibility of collective action, such as the one of the floor clauses, “against all entities that make up a banking system in a country. Their only commonality is that they use variable interests in mortgage contracts with more content clauses. or less similar.
It also questions the feasibility of a general control of transparency that is viewed from the consumer’s perspective, when different contract offers are targeted at specific groups of consumers or multiple predisposing entities have very different business and economic areas. This was done over a long period in which there was little public information about these clauses.
Adicae, who learned the Supreme Court’s resolution, described it as “shameful” after having seen it. This is more than 12 years after the “macro-demand” was filed. It has had two favorable resolutions in the first and second instances, with millions of consumers still participating in the courts at all levels. This shows a serious hindrance to the functioning of Justice>>.
After the Supreme Court delayed its June decision, the judicial journey of this macro-demand against 101 banks and savings banks to enforce the floor clauses opens a new chapter. It opened another period of 10 days for the parties to the Court of Justice of the European Union to raise questions in the published order a month ago. There will not be a vote or sentence until the doctrine has been established.
After twenty-seven appellant entities filed briefs indicating their agreement with the approach, Adicae objected to the request for preliminary ruling and the Public Prosecutor reported it was not necessary to raise preliminary ruling, the Supreme Court decided to go to Luxembourg to resolve an unresolved issue.
The latest decision by the High Court delays one of these most anticipated rulings for those who are affected by abusive clauses. To put an end years of judicial ups & downs, the CJEU has just established the foundations so that the affected can claim all of the money they paid for these clauses. Even though they had final judgments in which they could only get a portion of the amounts back, according to the Spanish doctrine of the time, the deadline from which refunds could still be claimed was 2013.
