The CJEU endorses ex officio restitution of everything paid for abusive clauses

In the ruling issued by the highest European court, it reaffirms that EU law is opposed to national jurisprudence that limits restitution in time.

The Court of Justice of the European Union (CJEU) has ruled that the national courts that settle a case of abusive clauses can examine ex officio if there is an infringement and order the full restitution of the amounts unduly paid for those clauses in a mortgage.

According to the CJEU, this is possible even if the affected consumer has not filed an appeal and it is not due to "total passivity" of the same, according to a verdict that agrees with a client after a preliminary question raised by the Spanish Supreme Court .

The court, based in Luxembourg, rules on the case of a Spanish consumer who in 2009 signed a mortgage loan with Banco Ceiss (absorbed by Unicaja) with a floor clause that was declared null by a Spanish court, which ordered the entity return the amounts paid in excess as of May 9, 2013.

The court ordered only partial restitution since that is what the jurisprudence of the Spanish Supreme Court dictated at the time.

Banco Ceiss appealed the sentence before the Provincial Court of Valladolid, but only the part that required it to pay the costs of the process.

While this appeal was being resolved, the CJEU ruled in December 2016 that all the clauses considered abusive should be declared null and everything unduly paid from the date on which the nullity was declared returned and not only from May 2013, as the Spanish Supreme Court had established.

In 2017, the Provincial Court upheld Ceiss's appeal and annulled the payment of the costs, but did not modify the ruling regarding the return to the consumer since she had not filed an appeal for it.

The user then went to the Supreme Court alleging that the Provincial Court should have taken into account European jurisprudence and requested ex officio the restitution of all the money, while Banco Ceiss objected, arguing that the consumer had not resorted to it.

The Supreme then decided to ask the CJEU if community legislation is opposed to the Spanish procedural rules that prevent the court that judges the bank's appeal from agreeing on the full restitution of the amounts paid by the floor clause and thereby worsen the position of the appellant (the bank) given that the consumer did not appeal.

In the ruling issued by the highest European court, it reaffirms that EU law is opposed to national jurisprudence that limits restitution in time and circumscribes it only to the amounts paid for the abusive clause after the justice confirmed this abusive nature. .

It also considers that the application of national procedural principles can "make the protection" of consumer rights impossible or excessively difficult.

Therefore, it concludes that the European directive on abusive clauses is opposed to these principles that prevent the judge who decides the appeal against a judgment that limited the time the restitution of the amounts unduly paid from being able to examine ex officio whether the law has been infringed. directive and decree the full restitution of those amounts when the lack of challenge by the affected consumer "cannot be attributed to a total passivity of this".

In this sense, the court argues that the fact that the Spanish consumer did not appeal the partial restitution of what was paid for the abusive clause may be due to the fact that when the CJEU issued its ruling on this type of clause in 2016, the established term had already expired. to appeal under national law.

"It cannot be considered that the consumer has shown total passivity (...) by not questioning before an appeal court the jurisprudence up to then maintained by the Supreme Court," the ruling states.

The CJEU has also issued four other different rulings regarding unfair terms in which, in general, it confirmed that national procedures should not be an obstacle to protecting consumer rights and that national judges should assess the abusive nature ex officio.