The Court of Justice of the European Union (CJEU) considers that consumers will be able to claim mortgage costs from the moment they become aware of the abusiveness of the mortgage clause, even if national law establishes that their right to request annulment expires at a maximum of ten years. This decision opens the door for clients to have more time and the deadlines to appeal can be extended.
The ruling arises from an appeal by several consumers who had mortgage contracts with Bankia (later merged with CaixaBank), BBVA, Banco Santander and Banco Sabadell. They paid the notary, registration and management expenses derived from the conclusion of the contract, but some time later they requested the annulment of the clauses considered abusive. Then, the banks rejected them because they considered that it had expired, because the ten-year period provided for in the Catalan Civil Code had expired.
After several rulings and appeals, the Provincial Court of Barcelona, ??which handles consumer cases, asked the European justice system to rule on several issues. To begin with, according to the judges of the Provincial Court, it is considered that the ten years established in the Civil Code complies with the principle of effectiveness because it is “a long term”, but they want to determine at what point it begins to run. On the other hand, they also wanted to know what level of knowledge a consumer should have about the abusive nature of the clause, and to know when the term begins as well.
In its ruling, the Court of Justice considers that the principle of effectiveness and the European directive are contrary to national law, in the event that a consumer requests the cancellation of an abusive clause by which the costs of a mortgage contract are imposed on the consumer. and is subject to a prescription, because it does not take into account whether the consumer knows his rights and whether it is enough time.
The Court recalls that a limitation period can be applied as long as its application “does not make it impossible or excessively difficult” for consumers to exercise their rights. Now, the ruling specifies, the period must be “materially sufficient” for the consumer to prepare to file an appeal. But this period “can only be compatible with the principle of effectiveness if the consumer was able to know his rights before the period began to run or expired.”
In some cases, entities considered that the period began from the moment they paid the last invoice for mortgage expenses. This often led to clients requesting cancellation for paying all the expenses, considering it abusive, but the banks ensuring that the time had already expired.
Thus, in its ruling, the Court believes that “it is possible” that a national rule determines that the limitation period will not begin to run before a consumer becomes aware of the abusive nature of a clause, but this may violate the principle of effectiveness if “the duration of said period is not materially sufficient to allow the consumer to prepare and file an effective remedy” to enforce his rights. Thus, regardless of whether national legislation considers that the maximum period is ten years, the clock starts ticking when the consumer knows that his or her rights have been violated and the abusive nature to which he or she may have been subjected.
The Court of Justice also rejects other arguments from banking entities that argued that consumers must know in advance the information on abuse of floor clauses. The ruling recalls that the European directive is based on the fact that the consumer is in a situation of inferiority compared to the professional, especially because he or she lacks the same level of information. “The professional continues to have a predominant position after the conclusion of the contract in relation to the information available to him,” he argues.
“It is to be expected that banking entities are aware of it and act accordingly.” On the other hand, the ruling warns, it cannot be assumed that consumers have the same level of information, one cannot expect “a similar attitude on the part of consumers, taking into account the occasional, or even exceptional, nature that the celebration has for them. of a contract that contains a clause of this type.”
This is a new victory for consumers. With this decision, the door is opened for thousands of clients to have enough time to claim their rights, since they had been denied because they considered that the time to request their annulment had expired. In Spain, the Supreme Court confirmed in 2021 that banks have to pay the entire appraisal, registration and management costs and half of the notary fees, when the mortgage clause that granted exclusive payment is declared void. to the client.
