The Constitutional Court has decided to annul several aspects of the extrajudicial mechanism that the Government of Mariano Rajoy raised in 2017 to face the avalanche of claims on floor clauses. The judges partially uphold an appeal from Podemos and annul two articles: the one that left legal entities out of this mechanism and the one that opened the door to the banks not having to pay costs if they finally lost the case in court. In some points this rule of the previous executive, says the Constitutional Court, “notably favors” the bank over the consumer.
European justice agrees with consumers: banks will have to return all the money from the floor clauses
The judges have analyzed the mechanism launched in January 2017 by the Government of the Popular Party to try to alleviate the foreseeable avalanche of claims for abusive floor clauses. Just a month before, the Court of Justice of the European Union had declared not only the abusive nature but also the obligation to return all the money, retroactively, in cases after 2013.
The flood of lawsuits by those affected by these clauses before the Justice was foreseeable, and the General Council of the Judiciary launched in July 2017 a specialization plan for courts throughout the country. The response of the central executive, for its part, was to implement through a Royal Decree Law an extrajudicial system “to resolve, in a simple, fast and free” this type of claims. A free procedure for the user with a maximum period of 3 months for resolution.
A rule that has now been declared unconstitutional in two of its points after an appeal from Podemos. The magistrates of the court of guarantees understand, in the first place, that the Government of Mariano Rajoy left legal persons out of this mechanism in an irregular manner, as well as “notoriously” favoring the banks, giving various possibilities for them to escape. to pay legal costs in case of losing the fight in a court.
The data reflects how the ruling of the European Justice effectively led to an avalanche of claims by those affected by this abusive clause that limits how much the mortgage payment can lower, no matter how much the interest rate also drops. According to data from the General Council of the Judiciary, in 2020 alone the specialized courts handed down almost 100,000 sentences on floor clauses with almost 240,000 pending cases.
A “notorious” favor to the bank
The Constitutional Court, with María Luisa Balaguer as rapporteur, understands that article 4.2 is unconstitutional. An article that opened the door to the bank not having to pay legal costs if the consumer went directly to court, skipping the extrajudicial mechanism, and also the entity then acquiesced in the affected party’s demand. A measure that, say the judges, in the first place favors those who previously resort to the extrajudicial route “with what seems to encourage the use of that one with preference over the others.”
A measure that also favors the bank. “While consumers would be dissuaded from instituting legal proceedings to obtain the refund of the amounts, on the contrary, said entities would not be dissuaded from continuing to insert abusive clauses in their contracts,” says the Constitutional Court.
The norm, settles the sentence accepting the arguments of Podemos, “favors in a notorious way those who unilaterally imposed the abusive clause and harms those who suffered such imposition and must claim the unduly paid to obtain their restitution”, something that supposes “an excessive obstacle and disproportionate for consumers “according to the judges.
The Constitutional Court rejects the allegations of the Ione Belarra party regarding the tax treatment of the amounts recovered in these processes but also declares the unconstitutionality of its article 2.2. A precept that limited the concept of consumer to natural persons, opening the door to appeals presented individually by persons and closing it to legal persons such as associations, companies or other types of organizations.
This, for the Constitutional Court, supposes a difference in treatment “lacking an objective and reasonable justification” and that does not respond to the objective of the Royal Decree Law. “The other consumers, who are prevented from being able to avail themselves of this procedure to claim the refund of the amounts unduly paid, they will necessarily have to go to court as a vehicle to process their claims against the banking entities, “the judges decide.