Comments of the STJUE 21 January 2015, Rafael Juan Juan Sanjose

interes de demora

Once declared invalid by being abusive interest for late payment, that clause must be expelled from the contract and therefore no interest, ni legal, or procedural, be applied.

We publish below the commentary on the judgment of the Court of Justice of the European Union by Rafael Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.

 

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Comments of the STJUE 21 January 2015.
D.T 2nd Law 1/2013 - Interest of abusive delay

Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón

Index

1.- Conclusions of STJUE 21 January 2015.-
2.- The D. T. 2Th Law 1/2013 It is not contrary to Directive 93/13 / EEC.-
3.- Responding to questions posed by the Spanish judge.-
4.- Conclusión.-

 

 

1.- Conclusions of STJUE 21 January 2015.-

Before the amalgamation of resolutions regarding the consequences to be applied when declared null clause by abusive default interest and taking into account the decisions of the ECJ and the legislative changes made in the Spanish Law, the Court of First Instance and Instruction No. 2 Marchena (Sevilla), filed, by Auto 16 August 2013 (1), a preliminary ruling on that question:

1. If in accordance with Directive 93/13 /EEC, of 5 April 1993, on unfair terms in consumer contracts, in particular Article 6.1 Directive, and to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, when a national court appreciates the existence of an abusive clause in mortgage default interest should proceed to declare the nullity of the clause and its non-binding nature or otherwise proceed to moderate interest clause giving the performer transfer or lender to recalculate interest.

2. If the Second Transitional Provision of Law 1/2013 of 14 May, but it does not involve a clear limitation to the protection of consumer interest, the court implicitly impose an obligation to facilitate a clause default interest incurred in abusiveness, recalculating the stipulated interest and maintaining the validity of a provision that had an abusive character, instead of declaring the nullity of the clause and the consumer no connection to it.

3. If the Second Transitional Provision of Law 1/2013 of 14 May, contravenes Directive 93/13 /EEC, of 5 April 1993, on unfair terms in consumer contracts, in particular Article 6.1 of that directive, to prevent the application of the principles of equivalence and effectiveness in the field of consumer protection and avoid the application of the sanction of nullity and no link Clauses interest incursas abusiveness delay stipulated in mortgage loans concluded before the entry into force of the law 1/2013 of 14 May.

These issues are resolved by the ECJ by STJUE of 21 January 2015 (2), in which, preliminary analysis of the Spanish legislation and the various decisions of the European Court itself concludes that:

Article 6, paragraph 1, Directive 93/13 / EEC, of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as not precluding a national provision according to which the national court hearing a foreclosure proceeding is bound to make you recalculate the amounts due under the clause in a loan agreement , provided that the application of the national provision:

* not prejudge the assessment by the national court that the unfair nature of the clause and

* does not prevent the same judge leave without applying the clause in question in the event that appreciates that it is "unfair" within the meaning of Article 3, paragraph 1, of that directive.

As we clarified the press release No. 9/15 (3), issued by the Court of Justice of the European Union on the same day 21 January 2015, the Court notes that the obligation to respect the ceiling interest rate for late payment in no way prevents the judge to consider a clause that those interests are established is abusive. Indeed, The Court emphasizes that the national court may assess the possible unfairness of a clause on interest determined in accordance with a rate lower than planned by the Spanish Law. Not be regarded as an interest rate lower delay to three times the legal interest rate is necessarily fair within the meaning of Directive. Moreover, in the event that the interest rate for late payment stipulated in a clause exceeds the provisions of Spanish law and should be subject to limitation, that circumstance does not prevent that, if the clause is abusive, the national court may derive from it all the consequences provided for in Directive, proceeding, if, to cancel the clause.

Certainly the decision of the ECJ is somewhat unclear and gives rise to all kinds of interpretations, How did it happen, notwithstanding which, and in order to clarify the issue, in the following paragraphs we will try to answer each and every one of the issues raised, and to give our interpretation of what really constitutes analyzed Judgment.

2.- The D. T. 2Th Law 1/2013 It is not contrary to Directive 93/13 / EEC.-

As we have seen above, the ECJ determines categorically that the second transitional provision of Law 1/2013 It is not contrary to Directive 93/13 / EEC, yet it maintains that this does not prejudice the judge declare the clause in question abusive, and this on the basis that:

The second transitional provision of Law 1/2013 It establishes a limitation of default interest in respect of loans or credits for the purchase of the residence and secured by mortgages on the property in question. Thereby, it expected that enforcement proceedings or extrajudicial sale initiated and not completed after the entry into force of the Law-that is, the 15 May 2013-, and in which you have already set the amount by requesting that the extrajudicial execution or sale is dispatched, that amount must be recalculated using default interest calculated from a rate not exceeding three times the legal interest rate when the interest rate for late payment fixed in the contract of mortgage in excess thereof.(p.35)

And continues to expose, and therein lies the basis for its decision, that as the Spanish Government pointed out both in its pleadings and at the hearing, As the Advocate General in points 38 and 39 its conclusions, the scope of the second transitional provision of Law 1/2013 It includes any mortgage loan contract and, in this way, does not match the Directive 93/13, which only refers to unfair terms in contracts concluded between a supplier and a consumer. It follows that the obligation to respect the ceiling interest rate of delay equivalent to three times the legal interest rate, as he was imposed by the legislator, in no way prejudges the assessment by the judge of the unfairness of a clause that establishes default interest.(p.36)

Namely, what is distinguishing the ECJ are cases in which the parties to the contract under dispute are a professional and a consumer, in which we understand each other come into play Directive, the rest, that the autonomy, Given the equality of arms between the parties, comes in completely. And so clear in point 38 when the European Court holds that when a national court hearing a dispute between private boarding only, You are required, to apply the rules of national law, to consider all the rules of national law and to interpret, as far as possible, in the light of the wording and the purpose of the directive applicable in this regard to reach an outcome consistent with the objective pursued by it (Käsler sentence and Káslerné Rabai, EU:C:2014:282, paragraph 64).

Thus concluding that, we must consider that, to the extent that the second transitional provision of Law 1/2013 does not prevent the national court can, in the presence of an unfair term, exercise its powers and to exclude the application of that clause, la Directiva 93/13 It does not preclude the application of such a national provision. (p. 39)

And that implies in particular, on the one hand, that when the national court must examine a clause in a contract relating to default interest calculated from a rate lower than expected by the second transitional provision of Law 1/2013, fixing by law of that ceiling does not prevent that court to assess the possible unfairness of such a clause within the meaning of Article 3 Directive 93/13. Thereby, not be regarded as an interest rate lower delay to three times the legal interest rate is necessarily fair within the meaning of the Directive.

To better understand the conclusions reached by the ECJ, share the view BALLUGUERA GOMEZ (4), in that there distinguish negotiated clauses and clause imposed.

So, Balluguera maintains that the ECJ, on the point 36, relying on the conclusions 36 ff. Attorney General 16 October 2014, It wields the difference between individually negotiated terms and imposed, to indicate that since the rule has saved an area that meets or includes first, however excluded from the scope of Directive 93/13 / EEC, el recálculo es aplicable a ellas, since not come within the Directive 93/13 / EEC, this can not serve as a basis for preventing such application.

Thus, understand equally that Balluguera Gomez, that only Directive shall apply to obligations imposed and not those that are individually negotiated which will be full implementation of the second transitional provision of Law 1/2013 in conjunction with Article 114 LH, what follows that, in practice, DT 2nd will be relegated to very specific cases, remaining inoperable in most cases studied by the courts.

3.- Responding to questions posed by the Spanish judge.-

After analyzing the decision issued by the ECJ follows that, despite solve each of the three issues raised by the Court of Marchena, It makes a somewhat confusing way, to finish with a conclusion, if not studied in depth the subject in question can be misleading. That is why then and as a summary reply, as does the European Court, each of the issues, but so that we can understand, more clearly, the solution to the problems raised by the national court.

a) First, the Court wonders whether Marchena appreciated the existence of an abusive clause in mortgage default interest should proceed to declare the nullity of the clause and its non-binding nature or otherwise proceed to moderate interest clause giving the performer transfer or lender to recalculate interests.

* In response, the ECJ answered flatly declare it null and must not be any restraint or integration.

b) Subsequently, the national court questions if the Second Transitional Provision of Law 1/2013 of 14 May, but it does not involve a clear limitation to the protection of consumer interest, the court implicitly impose an obligation to facilitate a clause default interest incurred in abusiveness, recalculating the stipulated interest and maintaining the validity of a provision that had an abusive character, instead of declaring the nullity of the clause and the consumer no connection to it.

* The European Court held that the 2nd DT is not incompatible with the Directive 93/13 / EEC and since it, As we discussed above, It can be applied to cases of individually negotiated terms. Now, you can not apply when the provisions are imposed. Therefore left in force the Spanish legislation examined.

c) Finally questions if the Second Transitional Provision of Law 1/2013 of 14 May, contravenes Directive 93/13 /EEC, of 5 April 1993, on unfair terms in consumer contracts, in particular Article 6.1 of that directive, to prevent the application of the principles of equivalence and effectiveness in the field of consumer protection and avoid the application of the sanction of nullity and no link Clauses interest incursas abusiveness delay stipulated in mortgage loans concluded before the entry into force of the law 1/2013 of 14 May.

* The solution that the ECJ is that only will be contrary when it comes to contracts between professionals and consumers, limiting and, as we have previously said its practical effect.

It also introduces a nuance European Court, although it was not explicitly asked by the national court, based on the conclusions made, and it is even below the limit imposed by Article 114 LH, depending on the circumstances, the national court dealing with the issue, You may declare the clause with the connotations that have studied above zero.

4.- Conclusión.-

As a corollary to the foregoing prior, if it is true that the ECJ has not declared contrary to Community law Transitional Provision Two of Law 1/2013, yes that has left somewhat devoid of substance, leaving his performance limited to those cases in which the default interest clauses have been individually negotiated.

Nonetheless, and in line with the statement made by the Provincial Court of Valencia in the Day of Unification of Criteria held on 30 May 2014, to certain assumptions, although clause is imposed, itself may come into play DT 2nd Law 1/2013, and so we must distinguish between:

a) Event that the judge understands, considering the circumstances, that the clause is void for abusive, whether even less than the parameters set by Article 114 LH.

* In this case it remains to his expulsion from the contract without possibility of recalculation without DT apply the 2nd Law 1/2013.

b) Of course that despite not declared unfair, interests are above the limit set by Article. 114 LH, for example, in cases where applying three times the legal interest to be a 12% the maximum, and the agreed moratorium was a 13-14% and it is understood that it would be disproportionate, but exceed the maximum provided by law.

* In such cases we understand that the court should proceed with the recalculation according to DT 2nd Law 1/2013 in conjunction with Article 114 LH.

And also as to the consequences of the invalidity of the clause of interest by abusive, we share the view of those provincial courts and the doctrine, they consider that once such nullity declared the clause must be expelled from the contract and therefore no interest, ni legal, or procedural, It should be applied and this can only be replaced as an unfair term by an extra provision of national law, cuando, as STJUE of said 30 April 2014, to the detriment of the consumer attends a situation where a contract between a professional and a consumer may not exist after the abolition of an unfair term.

Neither procedural interests Article understand applicable 576 LEC and since it is not subsumed dispatching the car running between the decisions or resolutions condemning expressly said that procedural provision relates, but we are in this case to the special case of Article 816 the LEC, specifically provided for payment trial.

Ultimately, we understand that the motu proprio bank, will not be able, when filing for foreclosure, accommodating them moderate the agreed interest to those established in Article 114 LH, nor, except in the cases discussed above, This can be the judge, having to simply deporting the contract clause, if it considered abusive and therefore null, without applying any interest.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.

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Notas:

(1) http://www.legaltoday.com/files/File/pdfs/PROV_2013_277058.pdf

(2)http://curia.europa.eu/juris/document/document.jsf?text=&docid = 161545&pageIndex = 0&doclang = EN&mode=lst&dir =&occ=first&part=1&cid=76246

(3) http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-01/cp150009es.pdf

(4) BALLUGUERA GOMEZ, C. "IF THE DELAY IS ABUSIVE INTEREST CAN NOT BE MODERATE OR RECALCULATE – The difference between commitment and contract negotiation saves the life of the transitional provision 2nd Law 1/2013 – Court of Justice 21 January 2015 ", http://www.notariosyregistradores.com/CONSUMO/BREVES/2015-interes-demora-abusivo.htm

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