According to the CJEU, it is now possible to request the return of all the months paid in excess for abusive instalments (where minimum instalments are included) and from the beginning, i.e. without any time limit. Also this Tuesday, the Court of Justice of the European Union ruled on the possibility of requesting the return of an amount considered abusive in cases where a mortgage has already been taken out and even with the sale of the property. This new judicial turning point is due to the fact that this Tuesday the Court of Justice of the European Union (CJEU) ruled in four judgments relating to these loans the right to claim the excess of the same. Minimum conditions before the court ruling. The veto of 9 May 2013, which limits the retroactive effect of that date.
The Luxembourg Court left the door open to the possibility of claiming excess discount amounts by the bank on the basis of a minimum clause before the Court of Cassation’s judgment of 9 May 2013, which limited retroactively to that time. “The Court of Justice reaffirms that EU law, contrary to national precedent, limits the effect of damages and limits it only to the excess amounts where the abusive clause has been applied following a judicial decision giving rise to such a breach.”
On the other hand, the judgment decided that national courts could formally examine the presence of breaches, as well as order the repayment of the full amount paid for such unfair rulings on such a loan.
In this context, the CJEU sees Spain’s procedural rules, which are incompatible with EU law, as an “obstacle” for judges to consider unfair judgments and for consumers to enforce them in court. The Luxembourg Court added that national procedural rules “must respect the principle of effectiveness” in order to give effect to judicial protection and concluded that “without effective supervision” of the abusiveness of mortgage contract clauses, it could not ensure their enforcement by the community.
In other words, despite having a final judgment, the consumer will be able to continue to sue to recover the amounts not claimed at the time.
In short, the Court of Justice of the European Union has underlined that the European legal protection system determines that consumers are “in a worse position than professionals”, both in terms of negotiating capacity and level of information. It therefore recognises that unfair terms “will not bind consumers”.
You can read the official statement here