What was coming came, and although the Spanish Supreme Court in the well-known Judgment of May 9, 2013, after establishing the criteria for declaring the nullity of floor clauses imposed on consumers, nevertheless indicated that the effects of the declaration of nullity of these clauses would only produce effects in the future, specifically from the date on which the judgment was issued.
The Court of Justice of the European Union (CJEU) has once again corrected us as a country, as is happening in many other matters, and so on. Judgment of 21 December 2016, tells us that the return of the amount paid under the floor clauses (once their nullity has been declared) must occur from the beginning of the credit relationship and not from May 2013 - as the Spanish Supreme Court held.
However, it is worth remembering that the CJEU has not declared the nullity of the floor clauses, but has simply determined the effects that it must have. This means that whoever has a floor clause and wants to get rid of it, even if there is no agreement with the Bank, must go to court to obtain a declaration of nullity of the clause and once this declaration of nullity has been obtained, the refund of the amount paid can be requested, from the beginning of the contract as we have indicated in the previous paragraph.
When is a floor clause void?
To answer this question we must make a brief reference to the consumer protection legislation, which is based on Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and in development of which Law 7/1998 on General Contracting Conditions was approved in Spain and the Law on the Protection of Consumers and Users was amended, whose original wording was from 1984, and whose promulgation was significantly influenced by the shock produced in Spanish society by the issue of “rapeseed oil”.
According to this regulation, in contracts subject to general contracting conditions, such as most banking or insurance company contracts, a double requirement is necessary for them to be binding on the consumer.
On the one hand, it passes a first filter, called incorporation control; and on the other hand, that it passes a second filter, called content control.
A.- Incorporation control
It is defined in article 7 of Law 7/1998 on General Contracting Conditions, according to which:
The following general conditions will not be incorporated into the contract:
to) Those that the adherent has not had a real opportunity to know in a complete manner at the time of the execution of the contract or when they have not been signed, when necessary, in the terms resulting from article 5.
b) Those that are illegible, ambiguous, obscure and incomprehensible, except, in the case of the latter, that they have been expressly accepted in writing by the adherent and comply with the specific regulations that govern in their field the necessary transparency of the clauses contained in the contract.
B.- Content control
Despite having passed the incorporation control, a general condition will be null and void under the terms of article 8 of Law 7/1998 on General Contracting Conditions, according to which:
1. Any general conditions that contradict the provisions of this Law or any other law to the detriment of the adherent shall be null and void. unless they establish a different effect in the case of contravention.
2. In particular, When the contract has been concluded with a consumer, meaning in all cases those defined in article 10 bis and First additional provision of Law 26/1984, of July 19, General for the Defense of Consumers and Users.
And it is necessary to remember that the abusive nature cannot be raised in relation to the adequacy between price and remuneration, on the one hand, or to the services or goods that must be provided in return, on the other hand, provided that such clauses are drafted in a clear and understandable manner.
How were the floor clauses drafted?
I will give examples of various writings that I have authorized.
“The resulting interest rate for the borrowing party will in no case be less than 3.500 percent nominal annual nor more than 7.00 percent nominal annual”;
“For all purposes, it is established that the interest rate applicable to this operation may in no case be higher than 12.00% nominal annual nor lower than 3.00% equally nominal annual”;
“For these purposes, the maximum interest rate is set at 9.75 percent nominal annual and the minimum interest rate at 4.50 percent nominal annual”;
“Both parties agree that the interest to be applied in this operation may never be less than 4 percent nominal annual, such that if the calculation of the interest rate to be applied in each review period, as provided in the preceding paragraphs, results in an interest rate lower than the aforementioned 4%, the latter rate will be applied.”
It is clear that there does not appear to be any obscure or difficult to understand wording, such that these clauses cannot be considered as being subject to the incorporation control. The photo at the top of the entry is real.
C.- Transparency control.
What has happened is that the Supreme Court interpreted the control of incorporation in a much more rigorous manner than the tenor of the law requires, by stating that contracts subject to general conditions must comply with a additional or transparency control, which requires that, in addition to the clauses being drafted in a clear and understandable manner, be transparent, in the sense that the consumer can get a clear idea of the economic and legal consequences that the inclusion of such a clause will entail for him.
This, together with the fact that the rule of article 82 of the Defense of Consumers and Users is applicable, which states that "the businessman who claims that a certain clause has been negotiated individually, towill bear the burden of proof"It assumes that it is the financial institution that is responsible for proving that it negotiated the floor clause individually (with the signer of the mortgage) and informed him of its consequences and if it cannot prove it, as happens in most cases, that floor clause can be considered null, for not having passed the incorporation-transparency control.
Therefore, in the words of the Supreme Court itself in its ruling of May 2013, in order to decide on the abusive nature of a clause, “the judge must take into account all the circumstances concurrent on the date on which the contract was signed” and “must assess all the circumstances concurrent on its conclusion, as well as all the other clauses of the contract”. Obtaining the nullity of the floor clause will mean recovering all the money paid under it, but its lack of transparency will have to be analysed on a case-by-case basis.
However, if it can be demonstrated that the bank complied with all its information obligations or that the client was perfectly aware of the existence of the clause, as well as the implications it entailed, the floor clause would be lawful.
The search for the culprit behind the floor clauses.
In light of all the above, there are those who have begun to look for those to blame for why a floor clause, if it was void, was incorporated into a mortgage loan deed, pointing the finger directly at the notaries.
There is a lot of verbiage, but what hurts the most about this are the pejorative comments from people who should be presumed to have a certain education, as is the case of Francisco Javier Orduña, who says that the notary “cannot limit himself to saying blah, blah, blah…” when he comes across a new clause in a contract, and to whom I say that I do not stammer, and I invite him to witness any signing that may take place in my Notary's office.
I am not going to defend my profession from a technical point of view, something that other people, much more qualified than I, have already done.
Nor do I intend to shift the blame that notaries may have to other groups, especially because in a situation like this one can speak with great propriety of shared blame.
For this reason, I am more in favour of the opinion of our recent president of the General Council of Notaries, that the system has failed, or more properly the mortgage system, understood the term system from a very broad point of view, ranging from the marketing of housing and loans for their financing, their taxation, the term, their own execution, and even the attitude of consumers, and whose recent reforms have also made it cumbersome and extremely expensive.
Legitimate consumer protection must never be in conflict with legal certainty, because if the latter does not exist there is no economic growth..
But on the other hand, if they want notaries to carry out effective work in the area of consumer protection, as in many other areas, it would be advisable that they do not provide resources, and that they do not send us to war with shotguns.
In Lleida on January 12, 2017.
