Abusive clauses

It is a propitious ground for abuses. The Union´s law stands up to fight them. The essential objective is the protection of consumers. The Directive 93/13, on abusive clauses in those agreements signed by consumers, establishes that the contractual clauses that have not been negotiated individually will be considered abusive if they cause, in spite of the demand of good faith, an important instability, to the detriment of the consumer, in the rights and obligations of the parties originated in the contract (Art. 3). These clauses do not bind the consumer (art. 4) and the national judge should declare it so.

The Court of Justice has repeated in many occasions that “the protection system established by the Directive is based on the idea that the consumer is placed in an inferiority situation opposite to the professional, regarding the capacity of negotiation and the level of information, which obliges him to adhere to the conditions drafted by the professional without being able to influence its content”. The situation of inferiority is expressed in abusive clauses that according to the Union´s law should not bind the consumer. “It is an imperative regulation that tries to replace the formal equilibrium between rights and obligations of the parties established by the contract by a real equilibrium that can restore the equality between the parties”. The instability between consumer and professional “can only be compensated by a positive intervention, alien to the parties in the agreement”. This is the role of the judge, who has to check if a clause is abusive and provide the consumer with the protection established by the Directive.

The judge needs to correct, applying the law, the formal instability, in order to impose a real equilibrium between the professional/company and the consumer. He is the guarantor of his rights; to avoid the appearance of the abuse when there are situations of inferiority of the consumer. He can defend them ex-officio, without the need of a request from the consumer, and can do it in any process where the rules of the contract need to be applied. The Court of Justice of the European Union has declared that “the nature and the importance of the public interest which is the base of the protection granted by the Directive to the consumers justify the fact that the national judge may esteem ex-officio the abusive nature of a contractual clause and correct the instability between the consumer and the professional.”

In this context, the Court of the Union, formulates several indications on how the Spanish judges should value certain clauses included in the mortgages awarded in Spain. The Court considers that they could be considered abusive by the judges. First it could be the clause on the advance maturity due to the breach of the debtor in a limited period of time: the Spanish judge will need to value if, on one side, the breach of the consumer affects an essential obligation and is extremely serious (in reference to the duration and the amount of the loan) and on the other side, if that faculty is an exception in reference to the applied norms and if the consumer has the necessary and effective means for its defense.

Secondly, the clause which establishes the late payment interest rate: the judge will have to check of the late payment interest rate and the legal interest rate are proportional. And third and last, the clause regulating the unilateral liquidation by the lender of the unpaid debt (related to the possibility of starting the foreclosure procedure): the judge has to determine if the clause makes it difficult for the consumer to have access to justice and his rights of defense. Based on these criteria, judges can and, above all, have to declare this clauses as abusive.

The Court of Justice of the Union has reminded once more that the protection of consumers is a public interest and that this protection has to be awarded by judges regardless of its scope; they will do so applying the law of the Union, which has a supremacy on our national law.

The Spanish laws cannot be the last bunker for abuses. Judges need to take advantage of the Union´s law to fight it and provide the consumers the necessary protection. They have to do so without waiting for the announced legislative changes. The law of the Union is a guarantee of all rights and it is the responsibility of the judges to make it effective.

Source: Expansión