Sunday, December 5

The TC declares unconstitutional the exemption from the payment of costs to banks for floor clauses

An image of the Constitutional Court.

An image of the Constitutional Court.

The Constitutional Court has given the reason to the Parliamentary Group of United We Can and has annulled an article of the royal decree of the Government of Mariano Rajoy of urgent measures of consumer protection in terms of floor clauses that established that banks would be exempted from paying the costs procedural if after starting the judicial procedure he accepted the consumer’s conditions to recover his debt. The judgment of the high court considers that “it notoriously favors the person who unilaterally imposed the abusive clause and harms the person who suffered such imposition and must claim the unduly paid to obtain restitution”, because to avoid paying the costs, he only has to agree to accept the claim.

The ruling, which has the particular vote of the magistrate MarĂ­a Luisa Balaguer, who has also been the rapporteur, begins by explaining that an appeal before the Constitutional Court is not the appropriate way to apply a judgment of the Court of Justice of the European Union on floor clauses, because consider that the royal decree with which the Executive tried in 2017 to respond to the increase in demands, which it estimated at 124.3%. ignored it.

In any case, the general criterion for the imposition of costs is considered valid, including that “they are imposed on the credit institution provided that the amount recognized in the judgment is higher than that offered, even if the consumer’s claims are not fully estimated”, but sees “a clear difference in treatment between the cases in which the previous claim has been mediated” that regulates the royal decree itself “and those in which said claim has not been presented, although other mechanisms have been expressly used to avoid the process. provided for in procedural legislation “.

Benefit the bank

The reason is that it considers that “a greater economic burden is imposed on those who have not resorted to the previous claim before the financial institution”, because the royal decree “allows financial institutions to evade the cost penalty through the search” with arriving to an agreement with the consumer, since this avoids them paying the costs.

“It cannot be understood, from the constitutional perspective, that such rights are relativized in the event that the consumer goes to court to claim the unduly paid amount, without having previously tried the prior claim of article 3 of the Royal Decree-Law 1/2017, since you will find yourself in the most probable position of having to face the expenses of your representation and defense, since the bank will only have to agree to the demand, without being able to the judicial body will appreciate the existence of bad faith and impose the costs “, affirms the resolution.

“In short, article 4.2 of the Royal Decree-Law notoriously favors the person who unilaterally imposed the abusive clause and harms the person who suffered such imposition and must claim the unduly paid to obtain its restitution, a consequence that not only is manifested lacking all reasonableness, but also represents an excessive and disproportionate handicap for consumers “and declares it unconstitutional.

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