The Supreme Court in Spain changes its criteria in relation to consumer agreements

The Supreme Court in Spain has changed its criteria in relation to consumer agreements, provided that it is proven by the Bank that the client was able to know the economic and legal consequences of its acceptance.

In a ground clause case in which bank and client reached an agreement in order to avoid judicial controversy, the Supreme Court considers, with quotes from the Advocate General in the Gravilescu case, that the imperativeness (Public Law rules are not negotiable) of the rules does not prevent the possibility of compromise, provided that the result of the agreement is in accordance with the legal system. It adds that the European Union itself has promoted in recent years relevant rules for the out-of-court settlement of conflicts, such as the Directive 2013/11/CEE on alternative dispute resolution in consumer matters, which has been incorporated into our legal system through Law 7/2017.

The Supreme Court affirms that the transaction, in spite of being different from mediation (a typical form of conflict resolution in consumer matters), is not contrary to the Consumer Law and adds that the Supreme Court has already ruled on the validity of the agreements in other areas such as between insurer and injured party agreeing a certain compensation, or in the claim for the return of amounts paid on account in off plan developments.

The sentence has the dissident vote of one magistrate.

Judge Orduña disagrees and understands that the Bank “predisposed a deceptive offer”

The ruling, which has the private vote of Judge Francisco Javier Orduña, a supporter of declaring the “absolute nullity of a banking practice that violates the rights of consumers”

Judge Orduña, a pioneer in defending the retroactivity of the ground clauses before this was declared by the European Court, disagrees with this version, since there is no evidence that the entity negotiated the new conditions.  And reminds that the active role that the consumer must have “to be able to consider that the clause in question has been the object of “is also required by the jurisprudence of the Court of Justice of the European Union (hereinafter CJEU), cases, among others, of the Decision dated February 21, 2013, Banif Plus Bank, C-472/11, and of April 14, 2016, Caixabank, SA, C-381/14″

In his private opinion he warns that, the bank not only does not prove that the aforementioned documents were actually negotiated, but also does not question or challenge the facts of the contractual relationship alleged by the clients.

That is, “these documents were offered by the bank, which were predisposed and imposed by the same, so that not even a copy was delivered to them and, ultimately, although it is not necessary for their consideration as a general condition, that these documents constituted a practice of the banking entity destined to limit its patrimonial responsibility in the cases of contracting mortgage loans including ground clause, which could be declared abusive

In this way, the professional “predisposed a misleading offer” to the customer by “silencing” fundamental data on the legal and economic consequences, including the possibility of denouncing the abusive nature of the first clause and claiming the return of the amounts unduly paid amounts, he concludes.

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