Banco Popular soil Clause declared abusive by the Supreme Court
The Supreme Court has declared the abusiveness of a number of different contracts clauses Banco Popular and BBVA.
The Judgment 23 December 2015, picks clauses declared void both financial institutions. It is a very long sentence, so in this post we will focus on the nullity of the clause floor at Banco Popular and in another post, I will comment with regard to BBVA.
The Organization of Consumers and Users sued exercising Action for cessation of a series of insert unfair terms in mortgage loans and other banking contracts BBVA and Banco Popular.
With respect to Banco Popular, it was the following conditions:
a) Limits to the change in the interest rate applicable
b) Rounding the applicable interest rate
c) Review agreed interest
d) Obligations of the debtor to ensure the conservation and effective warranty
and) Obligations of the debtor to ensure the conservation and effective warranty
f) Judicial forum
g) Supplementary agreements
Multichannel banking contract the responsibility for the use of keys.
The current account contract, the third condition, twelfth and thirteenth.
The 4B MasterCard card agreement, fifth conditions, thirteenth and twentieth.
VISA card contract HOP! Banco Popular Spanish, S.A., second conditions, seventh, and twenty-third.
The Commercial Court 9 Madrid partially upheld the claim and declared the abusiveness of only a part of such terms in sentence 22 September 2011.
They appealed to all parties the Provincial Court of Madrid whose section 28 He upheld the appeal of the OCU and prosecutors dismissed in its entirety and resources of both banks.
So BBVA and Banco Popular each filed recursos por infracción procesal y de casación ante el Tribunal Supremo.
Room highlights the following Ideas Judgment of the Provincial Court:
1.- Unfair terms should control of trade, based on the provisions of Article 6.1 Directive 93/13. And that job control, you can also do on appeal provided that the adversarial principle is respected (STS 9 May 2013).
2.- Collective injunction (art. 12 LCGC) allows debug illicit traffic of commercial conditions. This effect is also apparent from Articles 5 and 7 Directive 93/13 / EEC.
3.- The effect of the injunction is both the future, as for contracts that are in force such clauses.
4.- In the area of consumer contracts (art. 82.2 TRLGDCU) It is predisposing to prove that the alleged general condition would have been individually negotiated.
5.- The fact that the ground clause affecting the essential elements of the contract (Price and delivery), or it is intended by sectoral legislation, not exclude that it can qualify as a general condition of recruitment.
In the commentary to extraordinary appeal for procedural infringement of Banco Popular, It should be highlighted the statement of the Board:
"The ECJ case law is so clear and compelling that it can be said that the protection of consumer prevails over any issues or deadlines procedure, with the only limitation to safeguard the principles of hearing and contradiction ".
As to appeal Banco Popular, the financial institution, It argues that there is no reference to the Court of Justice of the European Union and the Spanish law rule requiring the duty of transparency.
The Lounge, reminds the bank is settled doctrine that requires that control transparency in clauses limiting the variety of remunerative interest agreed in mortgage loan contracts (“ground clauses”). Also, Article 4.2 Directive 1993/13 / EC requires that "These terms are in plain intelligible". Citing STJUE of 30 April 2014 and 26 February 2015, says You can not examine the content abusiveness of a clause that defines the main content of the contract but this does not mean that will not serve the dual control of transparency.
This dual control is:
1.-First control of incorporation: Transparency "documentary" or grammatical: That the wording is understood (STS 138/2015 and 241/2013, Arts. 5.5 and 7.b of LCGC).
2.- Second control: Its meaning is understood: Transparency on the "economic burden": Can not pass unnoticed by an average surreptitiously stick involve an alteration of the object of the contract or the economic balance of price and performance. The consumer must perceive that it is a clause which defines the main object of the contract, and you must know how to play or can play in the economy of the same.
For the Board, You can not control the balance target between price and performance, but the balance subjective therebetween, for check whether the consumer could understand its consequences.
In this sense, of the ECJ rulings cited,es 30 April 2014 and 25 February 2015.
Ultimately, the reason is rejected and not considered violated the system of sources of law referred to in Article 1 Civil Code.
La segunda alegación del banco consiste en que la sentencia no declara la nulidad de la cláusula suelo por la existencia de un desequilibrio importante entre las obligaciones y derechos de las partes, sino que directamente se hace por no superar el control transparency.
Para la sala, the ground clause of Banco Popular, despite its grammatical comprehensibility, does not exceed the transparency control, that it did not guarantee that borrowers may have actual knowledge of the cost of the contract, and in particular, although they contracted a loan of variable rate, really it was only fixed interest variable upward, but not less than said stop. Therefore, under Articles 8.2 and 9 Ka LCGC be declared invalid.
Thirdly, The bank argues that the wording of clauses soil is different from that used by BBVA in the judgment of 9 May 2013. To Room floor indicates that the clause is clearly written but is framed in the context of a plurality of sections relating to variable interest so that prevails the appearance that the type is variable when actually it is only upward. Also it is considered a very high minimum (4.5%) so that downward variations hardly materialize.
Ground clause is among an overwhelming amount of data from which it is masked and contribute to customer confusion. And his treatment is secondary, so that the consumer does not perceive its true significance. Therefore, It is considered not exceeding transparency control which leads invalid.
In summary, the nullity of the clause floor declaring Banco Popular.