The First Chamber of the Constitutional Court has unanimously decided to uphold the appeal for protection of a consumer who was forced by the Provincial Court of Madrid to pay part of the procedural costs in a lawsuit won against a bank for an abuse related to floor clauses, with foreclosure included.
The provincial court ended up recognizing an abuse when establishing the early maturity of a mortgage due to the non-payment of five installments, but considered that part of the cost of the trial should be paid by the plaintiff.
The ruling, for which the president of the court, Cándido Conde-Pumpido, was the rapporteur, is based on a European directive to reject “a regime that allows the consumer to bear part of the procedural costs of a procedure in which has upheld the main claim regarding the abusive nature of a contractual clause”.
A “significant obstacle” that discourages reporting abuses
The imposition of part of the costs on a bank client who wants to litigate against an entity and wins the trial “creates a significant obstacle that may deter consumers from exercising the right to effective control of the potentially abusive nature of contractual clauses.”
The case analyzed refers to a loan unilaterally resolved by a banking entity in February 2013, in which the court of first instance ordered mortgage foreclosure. The plaintiff alleged the abusive nature of three clauses and the court considered this request untimely.
Change of mind one year after foreclosure
However, in 2014 the court issued an ex officio order in which it declared the floor clause, which set a minimum interest on the loan, abusive and void, even when the mortgage references had been lower. It also left the default interest clause and the early maturity clause inapplicable.
It agreed to dismiss the case and closed the process, but did not expressly order costs because it understood that the matter presented serious doubts of law as a consequence of “appliative jurisprudence in constant evolution.”
Constitutional protection
The plaintiff filed an appeal only against this decision on costs, but the Provincial Court of Madrid did not agree, so she sought protection in the Constitutional Court.
The Constitutional Court considers 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,” it states.
It also alludes to the “manifestly unreasonable” nature of the contested resolution as it does not take into account the criteria established in the jurisprudence of both the CJEU and the Supreme Court. He assures that “the plaintiff’s right to judicial protection has been violated.”
