The Supreme Court has elevated the Court of Justice of the European Union (CJEU) a preliminary question on the collective lawsuit of the Association for the Defense of Consumers and Users of Banks, Savings Banks and Insurance (Adicae) for the floor clauses of mortgages, after asking the parties if it was appropriate to go to the European court.
Adicae’s lawsuit, against 101 savings banks and banks, was intended to recover the amounts unduly collected from the signing of the contract and not only since they were declared null. Although the association hoped to have the Supreme Court’s ruling on its collective lawsuit on June 1, the Supreme Court decided to open a period of ten days for the parties to rule on the advisability of formulating a preliminary ruling to the CJEU.
According to the order of the plenary session of Chamber I, the collective action is directed against practically all the financial entities that in Spain use or have used floor clauses for a long period of time, which would affect millions of contracts, gives rise to a multiplicity of wordings and formulations of the clauses (although they have the common denominator of imposing a cap on the drop in the interest rate ) and makes the concept of the average consumer “hardly usable”.
The high court set May 9, 2013 as the deadline to claim the amounts unduly collected, without retroactive effects and regardless of the date on which the mortgage was signed. However, other judicial bodies have issued rulings in favor of the return being executed from the date of signing the contract, as Adicae defends.
Other questions submitted to the CJEU
The jurisprudence of the CJEU established in a first ruling that the mortgage clauses considered abusive must be declared nullwith which the consumer has the right to be refunded the amounts unduly received by the bank since the Justice declares the nullity, but not before.
Subsequently, in response to a preliminary ruling raised by the Provincial Court of Zaragoza, it decided that consumers can request compensation in court for the abusive clauses of a mortgage even when this has already been executed and the property soldbut only in a later and different legal proceeding.
Now, in an order dated June 29 to which Efe has had access, the Supreme Court asks the CJEU if the applicable European directive covers “the abstract prosecution, for the purposes of transparency control in the framework of a collective action, of clauses used by more than a hundred financial entities in millions of bank contracts, without taking into account the level of pre-contractual information offered”.
Also, if it is possible to make an “abstract” control of transparency from the perspective of the average consumer when several of the contract offers are aimed at different specific groups of consumers”. Likewise, if such control is possible when “they are multiple and with very different economic and geographical business areas, for a very long period of time, long in which public knowledge of such clauses has evolved”.
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