A sentence opens a new waterway in the judicial mess of the floor clauses. The Provincial Court of Madrid, in a ruling dated April 19 and which anticipates a pronouncement that the European justice is pending, agrees with an affected party whose case was already judged in 2015. The courts ruled in her favor and declared the floor clause null, but according to the criteria established by the Supreme Court at that time, they only recognized the return of what he had paid in excess since May 9, 2013 (the date of the Supreme Court ruling), which amounted to something less 4,393.46 euros. When at the end of 2016 the Court of Justice of the European Union (CJEU) forced to change that interpretation, and to return all the money from the signing of the mortgage, the affected party sued again. But she found the same response as many others affected by the first criterion of the high court: a court of first instance dismissed the lawsuit because her case was considered res judicata.
The principle of res judicata is the one that, for the sake of legal certainty, states that the same matter cannot go through the courts twice. The sentence signed by the three magistrates of the nineteenth section of the Provincial Court of Madrid, however, considers that it cannot be applied in this case because the opposite “merely implies a violation of the principle of effectiveness of community law.” In other words, the applicant’s right to receive what European justice recognizes would be undermined: the possibility of claiming everything that she overpaid for the floor clause of her mortgage, signed in 2007, and not only since 2013. For this reason, the judges condemn the financial entity that granted the credit, Credifimo, to return 15,293.50 euros in a ruling that is appealable.
Spain has been entangled for years in the skein of abusive mortgage clauses that, mostly in the first decade of the century but not always, contained inapplicable conditions under the European directive on consumer protection. The star was always the floor clauses, which prevented the letters from becoming cheaper even if the interest rates fell a lot (as it happened), with more than a million claims before the banking entities, according to data from the Bank of Spain. The Supreme Court ruled for the first time nine years ago: on May 9, 2013, it pointed out the possible abusiveness of these clauses (under some conditions, they were legal), but indicated that those affected could only claim what they paid in excess from the date of that sentence. Several preliminary questions brought the matter to the CJEU, which ensured that the effects of the declaration of a clause as unfair could not be temporarily limited. The high court, through two new sentences in February and July 2017, had no choice but to adopt that criterion.
It is practically impossible to know how many approving sentences, but with a limited amount to be returned, were pronounced between the two dates that frame the change of interpretation of the Supreme Court. But the association of banking clients Asufin, which has spread the ruling after its publication on the specialized website Confilegal, points out that there were undoubtedly “thousands” due to the judicial conflict caused by these clauses. Patricia Suárez, president of that organization, considers that the “innovative” sentence of the Provincial Court of Madrid “reestablishes a situation that was absolutely unfair for thousands of affected people who had a final sentence and to whom the courts told them that the principle applied res judicata”. In addition, in anticipation of a new appeal that will take the case to the Supreme Court, Asufin hopes that the high court will “validate” the new legal interpretation.
At the heart of the matter, what is settled in the decision of the Madrid Provincial Court is the balance between the Spanish procedural rules and the application of community law. Therefore, the three magistrates recall that “according to the jurisprudence of the Court of Justice [de la UE], although consumer protection is not absolute, neither are the national procedural principles that govern the procedures that involve the assessment of abusive clauses”. And in this regard, they recall the conclusions that the Advocate General of the European Union has already presented in a similar matter that the Supreme Court has taken to Europe and that is pending resolution. In these conclusions, which do not have to coincide with what the Luxembourg court determines, although they do so in the vast majority of cases, the Advocate General points out that the Community consumer protection directive “opposes” the application of a series of of procedural principles that limited in time the return of the amounts paid in excess and prevent “agreeing on the full restitution of said amounts.”
He knows in depth all the sides of the coin.