Spain: Constitutional Protection: Absence Of Judicial Control Of Unfair Clauses That Ignore The Primacy Of European Union Law

Last Updated: 9 July 2019
Article by Ascensión Martín

The Judgment of the Plenary Session of the Constitutional Court (hereinafter TC) No. 31/2019, of February 28, dictates doctrine on the scope of the right of the respondent in enforcement proceedings to demand judicial control ex officio of unfair clauses in consumer contracts, based on an interpretation of the jurisprudence of the Court of Justice of the European Union (hereinafter CJEU).

The case is as follows: mortgage foreclosure proceedings that rejected the application for an invalidity proceeding filed by the plaintiff on the basis of constitutional protection in which he denounced the unfair nature of the early termination clause in the mortgage foreclosure deed.

It must be borne in mind that in mortgage foreclosure proceedings the Court Decision to award the property subject to the proceedings had already been issued. And it was precisely at that moment when the appellant requested the invalidity of the early termination clause contained in the mortgage loan contract and, secondarily, the suspension of the mortgage foreclosure proceedings. The appellant understood that this clause was null and void and that the consequent effects required not only its complete removal from the contract but also the invalidity of all the acts and effects of the same clause from its origin, which would amount, therefore, to no legal entitlement to undertake the mortgage foreclosure proceedings.

In his brief, the appellant referred to the jurisprudence of the CJEU, requesting that the proceedings be suspended until the preliminary ruling that the First Chamber of the Supreme Court (hereinafter SC) referred a question for in its Decision of February 8, 2017, was resolved, adding that the exercise of invalidity action is not subject to a time limit.

The Court of First Instance ruled that there were no grounds for invalidity because: (i) the cause of invalidity corresponds to the grounds for opposition to the enforcement proceedings, (ii) after the deadline, (iii) estoppel of the term, (iv) the principles of estoppel and res judicata are not incompatible with the principle of primacy of European Union law, (v) the jurisprudence of the CJEU does not have retroactive effect, nor does it require review of the Court Decision that was agreed to issue the enforcement (vi) there is no preliminary ruling, and (vii) the ex officio examination of the deed cannot replace omission of the opposition by the appellant to the proceedings in due time.

The appellant invokes the violation of the right to effective judicial protection on matters related to the right of access to justice and the reasons for judicial decisions in relation to the principle of the prohibition of arbitrariness, the right to decent housing, the principle of primacy of European Union law and the special protection of consumers and users.

Thus, the appellant considers that the Court should have ruled ex officio on the early termination clause, taking into account the criteria contained in the case law of European Court, fundamentally in the Judgment of the Court of Justice of the European Union (hereinafter STJUE) of January 26, 2017. Thus, if in accordance with such standards the clause becomes null and void, it must be removed from the mortgage loan contract. And, therefore, the non-admission of the invalidity proceeding violated his right of access to the jurisdiction in breach of European Union law.

The Plenary of the TC analyses if the substantive requirement foreseen by the STJUE of January 26, 2017, is fulfilled, to admit a later control on the unfair nature of a clause not brought up in the corresponding opposition process and after ruling a non-appealable decision.

The Plenary of the TC concludes that this requirement has not been complied with since it does not appear in any section of the Court Decision, which agreed to issue the enforcement, that an examination of the contractual clauses has taken place. As a result, the appellant was deprived of a substantive ruling on the eventual unfair nature of the early termination clause contained in its mortgage loan contract, to which the judicial body was obliged in accordance with the STJUE of 26 January 2017.

In conclusion, the Constitutional Court granted the protection since the Court of First Instance has not complied with the interpretation of Directive 93/13 that had been made by the STJUE of January 26, 2017. The Court of the First Instance has not gone to analyse the possible invalidity of the early termination clause, which was the subject of the invalidity proceeding, nor has it referred a question for a preliminary ruling. In this way: (i) it has infringed the principle of primacy of European Union law by dispensing with the interpretation imposed and indicated by the competent body to do so with binding force; (ii) it has made an unreasonable and arbitrary interpretation of a rule applied to the process, and (iii) has violated the right to effective judicial protection of the appellant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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