The Supreme Court orders the bank to pay the costs in litigation over abusive clauses

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If the consumer demand on abusive clauses is estimated, the defendant must be ordered to pay the costs

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Así se desprende del principio de efectividad del Derecho de la UE, que exige que los consumidores no se vean vinculados por las cláusulas abusivas y que se cumpla en efecto disuasorio del uso de estas sus contratos no negociados.

Si el consumidor que tiene que reclamar la nulidad de unas cláusulas abusivas, debe pagarde su bolsillolos gastos del proceso, there would be a reverse deterrent effect: In many cases, consumers would be prevented from filing litigation for moderate amounts.

The Plenary of the Civil Chamber of the Supreme Court has issued a ruling on 17 September 2009, with No Resolution 472/2020, estimating the appeal by D. Ángel y Dña. Raimunda, declaring without effect the ruling on the costs of the first instance, condemning BANCO SANTANDER, S.A., to the payment of the procedural costs to the plaintiff.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 17 April 2009, D. Ángel y Dña. Raimunda signed a multi-currency mortgage loan agreement. They filed a lawsuit against BANCO SANTANDER, S.A. (formerly BANCO POPULAR ESPAÑOL, S.A.), the 27 October 2016, requesting that the multi-currency clause be declared abusive.

Primera Instancia

The Court of First Instance No. 89 Madrid gave judgment on 7 November 2017, refusing the application. It ordered the applicants to pay the costs. It rejected that it was a complex financial derivative and that there was a lack of transparency.

Provincial Court

D. Ángel y Dña. Raimunda filed an appeal.

The 25th Section of the Madrid Provincial Court ruled on 10 September 2018, estimating the appeal.

He declared the nullity of the mortgage loan signed by D. Ángel y Dña. Raimunda the 17 April 2009 Regarding the clauses of the multi-currency clauses, for not passing the transparency control. It condemned the Banco Popular Español, S.A., to return the commissions to the plaintiffs, costs and expenses related and applied for the use of currency.

As for the coasts, understood that there were legal doubts about the regulations applicable to mortgage loans in foreign currency, therefore, it did not expressly impose the costs incurred in either of the two instances.

Supreme Court

D. Ángel y Dña. Raimunda filed an appeal.

They claimed only one reason: infraction arts. 8 b) and c) and 83 LGCU and the jurisprudence of the Supreme Court established in the Sentence of the Plenary No. 419/2017, of 4 July, As for the derecho del consumidor a obtener una reparación completa de los daños causados bajo el principio de no vinculación del consumidor a las cláusulas abusivas según la jurisprudencia del TJUE.

The appellants argued that the non-imposition of costs to the bank represented an exception to the principle of the objective expiration of art. 394.1 LECivil. By having to pay the costs of the process the consumer himself, there was a reverse deterrent effect, infringing the principle of effectiveness of Union law and the non-binding of consumers to abusive clauses.

The Civil Chamber brought up the STS 419/2017, of 4 July, because it applied the principle of effectiveness of EU law, and in particular, Directive 93/13 / EEC. I consider that, in disputes over abusive clauses, “(…) if the consumer had to pay in full the expenses derived from his defense and representation, The factual and legal situation that would have occurred if the abusive clause had not existed would not be restored and, therefore, the consumer would not be immune despite having in his favor a national procedural rule whose general rule would exempt him from these expenses. In sum, there would be a reverse deterrent effect, Banks would not be discouraged from including predatory clauses in mortgage loans, rather, consumers would be discouraged from pursuing litigation for moderate amounts. "

Ultimately, The Chamber concluded that the general rule of expiration in the matter of procedural costs favored the application of the principle of effectiveness of the Law of the Union while the exception to the general rule was an obstacle to the application of that same principle.

In this case, The Chamber considered that the sentence handed down by the Provincial Court did not respect the requirements established in arts. 6.1 and 7.1 of Directive 93/13 / EEC and of the principle of effectiveness of EU law, nor what is established in the STJUE of 16 July 2020, asuntos acumulados C-224/19 y C-259/19.

La Sala revocó la sentencia de la Audiencia Provincial en materia de costas, y sustituyó el pronunciamiento por la condena al BANCO SANTANDER, S.A., al pago de dichas costas procesales.


En materia de cláusulas abusivas, si se aplica la regla de lano imposiciónde las costas por existencia de serias dudas de hecho o de derecho, el consumidor tendría que pagar sus gastos derivados del litigio. No se restablecería completamente la situación de hecho y de derecho que se habría dado si no hubiera existido la cláusula abusiva y, therefore, no quedaría indemne. Se produciría un efecto disuasorio inverso, pues se impediría a los consumidores que reclamasen.

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