War between banks and consumers for the return of the floor clauses
Banking and government delay compliance with ECJ ruling.
The Minister of Justice, Rafael Catalá, recently announced that specialized courts in floor clauses may be designated with the aim of not collapsing the judicial system in the face of an avalanche of consumer complaints.
These courts would have jurisdiction to resolve disputes in which the bank and the clients had not reached an agreement in the extrajudicial process on the floor clauses that the government approved.
Although it is not yet clear which courts will be responsible for this matter, and especially, who will appoint these new specialized courts, from the judicial sector it is preferred that this decision is taken by the General Council of the Judiciary (CGPJ) instead of by the Ministry of Justice.
In any case, this extrajudicial procedure, which has received many criticisms, does not end with the judicial problem of floor clauses. The main banks affected by the judgment of the CJEU on these clauses argue that, since they have already been condemned by the Supreme Court to repay the illegal interests since May 2013, this ruling does not affect them and they accept the principle of res judicata.
Faced with this movement, consumers are organizing actions demanding the State’s liability in the case of floor clauses. The argument is that in the ruling of the European High Court Spain is held responsible that the Supreme Court did not apply Community law in this matter.
In this way, they consider that the TS should have submitted a question to the CJEU before deciding to establish May 2013 as the limit to the retroactivity of the floor clauses that would later be annulled by the European court. Additionally, the court of First Instance nº10 of Madrid has already been pronounced.
The bank’s reluctance to accept the total and immediate repayment to its clients of the amounts overcharged by the floor clauses, recognized by the CJEU, and the approval by the government of an extrajudicial process that rather dilates the fulfillment of this judgement not only does not solve the problem of these clauses but shuts it down, catching the citizens in a long and tortuous judicial framework.
At Del Canto Chambers we specialize in tax and commercial law. From our platform www.spanishbank.co.uk we manage the claims for the return of the floor clauses. You can also contact us at firstname.lastname@example.org.
Del Canto Chambers’ Editorial Board