The Constitutional Court orders restitution of the money paid in costs by a woman who won a lawsuit over abusive clauses

The Constitutional Court has granted protection to a citizen to recover the money she was forced to pay in costs as a result of a lawsuit over abusive clauses in her mortgage. The appellant was sentenced by the Provincial Court of Madrid to pay part of the costs of the process, despite the fact that the judicial body that dealt with the matter ex officio appreciated the abusive and null nature of the early maturity clause for non-payment of a single capital or interest fee.

The ruling, for which the president of the court, Cándido Conde-Pumpido, was the rapporteur, considers that a specific European directive (93/13/EEC of the Council, of April 5, 1993), on abusive clauses, is applicable. in contracts concluded with consumers, and in particular, its articles 6.1 and 7.1, which establish the non-binding of the consumer to the abusive clauses that appear in a contract concluded between the consumer and a professional.

In the case analyzed, the loan contract had been terminated unilaterally and early by the banking entity on February 7, 2013 as a result of the non-payment of five loan installments. But, subsequently, the same court declared the floor clause abusive and void, and left the default interest clause inapplicable, and in another order also declared the early maturity clause abusive and void. Consequently, it agreed to dismiss and archive the process.

The court of first instance did not expressly order costs because it understood that the matter presented serious legal doubts as a consequence of constantly evolving applicable jurisprudence. The plaintiff filed an appeal only against this ruling regarding costs, to request that they be imposed in their entirety on the executing banking entity. The Provincial Court of Madrid dismissed the appeal by Order of October 7, 2020, against which the amparo claim is directed.

This resolution was based on the lack of a specific rule that regulates the award of costs in a mortgage foreclosure procedure in which the existence of abusive contractual clauses is found and their dismissal is ordered (art. 695 LEC). It also considered that there was no express rule on the imposition of costs in the appeal filed in such type of procedure.

European jurisprudence

The Constitutional Court, in turn, has considered the jurisprudence of the Court of Justice of the European Union (CJEU) to be applicable to this case by pointing out the duty of States to provide adequate and effective means to cease the use of this type of clauses. . In several rulings of the European justice system, it is held that a regime that allows the consumer to bear part of the procedural costs of a procedure in which the main claim regarding the product has been upheld is incompatible with the principle of effectiveness of the aforementioned directive. abusive nature of a contractual clause. The CJEU has been considering that such a regime creates a significant obstacle that may deter consumers from exercising the right, conferred by the aforementioned directive, to effective control of the potentially abusive nature of contractual clauses.

The First Chamber of the guarantee body has considered the contested resolution to be manifestly unreasonable by not taking into account the criteria established in jurisprudence of both the CJEU and the Supreme Court, prior to the issuance of the aforementioned order of the court of first instance. Consequently, it declares that the plaintiff’s right to effective judicial protection without defenselessness has been violated (article 24.1 of the Constitution), the annulment of the contested order and the retroaction of actions to the moment prior to its pronouncement so that the judicial body issue a new resolution respectful of the violated fundamental right. The resolution does not specify, in any case, the amount that the appellant must recover, which will be calculated by the court that has seen its previous decision annulled.

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