A Judge in Ceuta has decided to submit a preliminary ruling before the Court of Justice of the European Union (CJEU) so that it may rule on whether the latest judgments of the Spanish Supreme Court, by which the expenses of formalizing the mortgages between the bank and the client were distributed, are contrary to the European Union Law and its jurisprudence, in terms of the protection of consumers on abusive clauses.
Doubts arise to the judge on how to deal with the issue, because although it was already warned that these types of clauses are null, how is it possible that the Supreme Court is again finding in favour of banks and allowing the distribution of mortgage related expenses between the lender and the borrower.
Therefore, bearing in mind the Community Directive 93/13 / CEE of 5 Apr. of 1993, on abusive clauses in contracts concluded with consumers, the judge raises two requests to the CJEU:
- To establish an unequivocal criterion to determine if the new jurisprudence dictated by the Supreme Court in the judgments of January 23, 2019 according to which the clauses by which mortgage related expenses of Notary and Agency (mortgage managers) are distributed between bank and client are adjusted to European regulations for the protection of consumers and users, as well as the exclusive payment by the client of the opening commission whenever the transparency control is exceeded.
- To answer if the Supreme Court can carry out an integrating interpretation of a null clause for abuse when the suppression of the same and the effects arising there from do not affect the subsistence of the mortgage loan agreement.
In short, what the judge intends is an express pronouncement on whether or not it is in accordance with European Union Law for moderating or distributing the expenses for the constitution of a mortgage loan once the nullity of the clause that imposed them is declared null and void.