The Court of Justice of the European Union (CJEU) has ruled this Tuesday that consumers can claim compensation in court for the abusive clauses of a mortgage also in the event that it has already been executed and, even, when the property is sold out. Likewise, the CJEU considers contrary to EU law the Spanish procedural rules that represent "an obstacle" for judges to examine abusive clauses and for the consumer to claim them in court within the framework of a mortgage contract.

The court based in Luxembourg has indicated in its ruling that the national procedural provisions "must observe the principle of effectiveness" to comply with judicial protection and concludes that "if there is no effective control" of the abusive nature of the clauses of a contract respect for community law cannot be guaranteed.

The European High Court recalls in its ruling that the protection system of European regulations establishes that the consumer is "in a situation of inferiority with respect to the professional", both in terms of negotiating capacity and level of information, for which grants that these abusive clauses "will not bind the consumer".

In addition, the CJEU will allow claiming the amounts unduly collected by the floor clause prior to the Supreme Court Judgment of May 9, 2013, which limited the retroactive effects to this date. Thus, Almudena Velázquez, legal director of claimant.es, points out that it is "a great victory for consumers who saw how they were discriminated against by the European ruling of 2016 because in their demands, adjusted to the doctrine of the Supreme Court, they only demanded the return of the overpayment from that May 9, 2013, while those who sued after 2016, could claim from the beginning of the application of the clause. Now they will be able to demand that total refund giving equal treatment to all those affected.

The directive adds that "it is also confirmation that for the CJEU, the equalization of the prescriptive period between the exercise of the action and the return of amounts, as defended by the banking entities and is currently the subject of another preliminary ruling in relation to the reimbursement of expenses, is that, totally artificial. There will always be the right to a full refund of the amounts.

For her part, Patricia Suárez, president of ASUFIN, explains that "in Spain it is very difficult to review a judicial decision when it is firm, and Europe is now telling us that this Spanish legal principle goes against consumer rights." “It is great news that goes in the direction of reinforcing the protection of consumers, who are often helpless in the face of final judgments that are really complex to review and that can incorporate biased interpretations of Union Law.”

The ruling refers to two legal proceedings, one issued at the request of the Zaragoza Provincial Court on the case of a consumer with a mortgage contracted with Ibercaja in 2005 and executed in 2015 and the other issued at the request of the Spanish Supreme Court in relation to a dispute between a consumer and Unicaja Banco for a mortgage contract that established a "floor clause" according to which the variable rate could not be less than 3%.

The first of the cases refers to a claim for payment of interest owed by a consumer to Ibercaja for not complying with the payments of the mortgage loan. The consumer alleged the abusive nature of the default interest clause and the floor clause, a contract that was examined at the beginning of the foreclosure procedure.

After an auction without bidders, the mortgaged property was awarded to Ibercaja Banco, which transferred it to the company Residencial Murillo. In 2016, Ibercaja requested the liquidation of interests to the consumer, something to which he opposed claiming that some of the clauses of the contract "were abusive".

The main question raised is whether European legislation precludes the judge from examining "at a later stage of the procedure the abusive nature of the contractual clauses, which were the subject of an initial ex officio control" by the court, but which "does not is explicitly reflected in the decision authorizing the foreclosure."

The Court of Justice of the European Union has stated that Union Law is opposed to national legislation that "due to the effect of res judicata and pre-conclusion" does not allow the judge to examine "ex officio" whether the clauses of the contract are abusive in the context of a foreclosure or the consumer to appeal "the abusive nature of the aforementioned clauses".

In this sense, it indicates that the judicial resolution of this foreclosure "does not contain any reason" that proves that this examination has been carried out. Since when the foreclosure has concluded and the property rights have been transferred, the judge can no longer carry out that examination on the abusive clauses of the contract. Thus, the Court of Justice of the EU states that the consumer must be able to invoke a different and subsequent procedure to obtain compensation for the economic damage caused by these clauses.

The other case refers to the lawsuit filed by a consumer against Unicaja Banco in which he requested the nullity of an abusive clause "due to lack of transparency" in a mortgage contract in which the variable rate could not be less than 3% .

The Spanish Supreme Court consulted the Court of Justice of the EU on the compatibility between national law and European law in an appeal, after a ruling that limited in time the restitution of the "amounts unduly paid by the consumer as a result of a clause declared abusive" since it is not possible to examine "ex officio" the infringement of the European directive and order the full restitution of those amounts.