The Supreme, against consumers | Economy

The decision of the Supreme Court not to resolve a lawsuit on the floor clauses and send the case to the European court after alleging doubts on the matter is unacceptable. It must be remembered that this is a collective lawsuit filed by the Adicae association in 2010 against the abuses of 101 financial entities that charged improper interest through these clauses in mortgages. The floor clauses, declared null in 2013, are not a simple technical matter. With them, the banks profited by preventing mortgage interest from being lowered by 200 or 300 euros per month, vital amounts for millions of families.

The lawsuit, which represented thousands of affected people, was largely estimated by the magistrate Carmen González, of Mercantil 11 of Madrid in 2015 and confirmed by the Provincial Court of Madrid in 2018. The banks appealed to the Supreme Court arguing that the plurality of situations individuals and the different practices of the various entities could not be resolved by a class action based on the abstract idea of ​​the average consumer.

The surprising thing is that the Supreme Court assumes the reasoning of the bank when it had already rejected them exhaustively in 2013 and 2015, without having subsequently modified its doctrine. In 2013, rejecting a bank annulment action, he said: “Denying the possibility of abstract control and forcing each consumer to litigate to declare the annulment of the abusive general condition would be an obstacle that is difficult to overcome for the protection of their legitimate interests. economic interests through effective procedures, as guaranteed by community and internal regulations, including the Constitution (art. 51.1)”. (ATS10482/2013, ECLI:ES:TS:2013:10482A).

In 2015, in a plenary ruling, the High Court was more forceful on a legal basis, stating that the allegation that transparency control “can only be assessed on a case-by-case basis, it is not shared, because it is incompatible with the regulation that both domestic and community law do about collective action”. (STS 138/2015 of March 24, 2015).

After these answers, it is inexplicable that the Supreme Court now asks if it is possible to carry out “the abstract prosecution, for the purposes of transparency control within the framework of a collective action, of clauses used by more than a hundred financial entities, in millions of banking contracts, without taking into account the level of pre-contractual information, …or the rest of the concurrent circumstances in each case”. It is well known that all entities, except Bankinter, have used them.

It is suspicious that the Supreme Court only asks Luxembourg when it has to agree with consumers. On the floor clauses there are already four European resolutions (2016, 2020 and two in 2021) favorable to consumers answering 30 questions from Spanish judges. It is significant that due to their damages they were banned in Spain in 2019. The defenselessness of citizens created by the Supreme Court requires action by the Government to adapt to European regulations.