Nullity is nullity. Spanish Judges put case before the CJEU on abusive mortgage clauses

The chief Judge of the Court of First Instance No. 17 of Palma de Mallorca has filed a preliminary ruling before the Court of Justice of the European Union (CJEU) in regards to the critical situation created by the recent decisions issued by the Civil Chamber of the Supreme Court.

The magistrate claims to unify interpretive criteria to defend the legal security that must exist in our State of Law, avoiding contradictory judgments that cause “a serious and irreparable harm to consumers”

The question raised has been registered with the reference C-224/19 and its purpose is for the CJEU to analyze whether the jurisprudence issued by the Supreme Court on mortgage tax is in accordance with the European Directive 93/13 / CEE on abusive clauses in contracts entered into with consumers.

Initially, the Supreme Court agreed in November 2018 that the client should pay the Stamp Duty Tax (IAJD) of the mortgages even if the formalities clause was declared void.

The judgments issued by the Spanish Supreme Court are contrary to European Union law, as it limits the effects of reimbursement that must occur after the declaration of an abusive clause inserted in a loan contract.

It is also in contradiction with the understanding of nullity since the legal concept was created by Roman Law:  Quod nullum est nullum effectum producit. Also in provision 1303 of our Napoleonic Civil Code.

The second question raised is about the so-called opening commission.

In this case, until the last ruling of the Supreme Court, dated January 18, 2019, practically all the Provincial Courts had been satisfied to declare abusive the commission for opening mortgage loans.

The Supreme Court uprooted this possibility against the majority position because it understood that the collection of the commission is widespread and known to all consumers and to understand that it affects the price of the contract.

The distribution established by the Supreme Court of the expenses of notary, agency, registration and appraisal of mortgages between the bank and client is also discussed, since the doctrine established by the Supreme Court is in contradiction with the principle of non-binding and with the non-deterrent principle established in the Community Directive.

A calculation has been made and it is pointed out that in case the CJEU decides in favour of the consumers, it will mean that each affected person can claim an average of more than 10,000€ in return for the following items:

Stamp Duty Tax:  4,500 euros approximately

Opening commission: 3,750 euros approximately

Notary fees: 800 euros approximately

Mortgage management fee:  400 euros approximately

Registration costs: 250 euros approximately

Property Valuation costs: 400 euros approximately


All that would make a total of 10,100 euros


The feeling that exists is that the different judgments issued by the Supreme Court have caused a climate of legal insecurity never seen in the judicial system.

This situation is of such magnitude that contradictory sentences are found in the same case in the first and second instance, and differences between Provincial Courts.

The Court of First Instance and Instruction No. 6 of Ceuta has also  submitted a question to the CJEU for a ruling on whether the latest judgments of the Spanish Supreme Court, in which the expenses for the formalization of mortgage loans between the bank and the client were distributed, are contrary to the European Union Law and its jurisprudence.

In this Ceuta question, it is posed whether once the clause on mortgage expenses -without including the controversial mortgage tax- has been declared null and void; distributing said expenses between bank and mortgage holders goes against European Union law and its jurisprudence, as regards the protection of consumers on abusive clauses.



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