The Supreme Court raises to Europe the 'macro-demand' on floor clauses filed by Adicae

MADRID, 4 Jul. (EUROPA PRESS) -

The Civil Chamber of the Supreme Court has decided to refer a preliminary ruling to the Court of Justice of the European Union (CJEU) for the 'macro-demand' on floor clauses filed by Adicae.

Adicae's 'macro-demand', directed against 101 Spanish banks and savings banks, was won in two judicial instances, which condemned the banks to return the amounts unduly charged for the floor clauses from the signing of the mortgage, plus interest, considering them abusive , and stipulated that retroactivity should be total.

The entities appealed to the Supreme Court. Although the association hoped to have the ruling of the Supreme Court on June 1, it decided to open a period of ten days for the parties to decide on the advisability of formulating a preliminary ruling to the CJEU.

After more than twenty appellant entities submitted briefs showing their agreement with the approach to the preliminary ruling, after Adicae opposed the request for a preliminary ruling and after the Public Prosecutor reported that it did not consider it necessary to raise the preliminary ruling, the Supreme Court has decided to make requests to the Court of Justice of the EU for a preliminary ruling in relation to collective action against the floor clauses.

According to the order of the plenary session of Chamber I, the Supreme Court has not found it justified to deny the approach of the preliminary questions to the appellant entities, which have identified several controversial issues.

The Supreme Court explains that 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 ceiling on the drop in the interest rate) and makes the concept of the average consumer "hardly usable".

In the collective action of cessation an abstract control is intended. The Supreme Court points out that, if the abstract control must be carried out on thousands of predisposed clauses over a long period of time, by dozens of different financial entities, subject to legislative changes in terms of their formulation and without the possibility of contrasting the pre-contractual information offered in each case to consumers, "it is extremely complex to be able to conclude that a unequivocal transparency control can be carried out on similar clauses".

For this reason, the Supreme Court has asked the CJEU if 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 banking contracts, without taking into account the level of pre-contractual information offered on the legal and economic burden of the clause, nor the rest of the concurrent circumstances in each case, at the time of contracting".

Likewise, the Supreme Court has raised a second preliminary ruling on whether it is compatible to carry out an abstract control of transparency from the perspective of the average consumer when several of the contract offers are addressed to different specific groups of consumers or when there are multiple predisposing entities with economically and geographically very different business areas, during a very long period of time in which public knowledge about such clauses was evolving.

ADD CRITICAL "VERGONZOSA" RESOLUTION

After knowing the resolution of the Supreme Court, Adicae has described it as "shameful", after more than 12 years since the 'macro-demand' was presented, which has two favorable resolutions in first and second instance, and with "millions of consumers still involved in the courts at all levels, showing a very serious hindrance in the functioning of Justice".

"The First Chamber of the Supreme Court kicks forward to evade its responsibility, unfortunately returning the matter to the first days, from more than 12 years ago under the false ones and to Europe under the false criteria by which it has been defrauding in Spain to millions of consumers for the disastrous reactionary conservative mantra of the Spanish justice system of referring massive consumer conflicts to the so-called 'vice of consent', that is, to the 'one by one' analysis of generalized fraud", he criticized the Asociation.

Adicae, in addition to appearing as a party to the CJEU to discuss the "erroneous" thesis of the Supreme Court, has announced that it will claim the validity of Directive 2020/1828 on filing actions (collective actions), which ensures that it resolves the doubts raised by the Supreme Court.