BRUSSELS, 18 Ene. (EUROPE PRESS) –
The Attorney General of the European Union has supported this Thursday the adequacy of the collective procedure to carry out a control of the transparency of the floor clauses to assess whether they are abusive.
The conclusions indicate that this occurs in the case of an action directed against more than a hundred Spanish financial institutions, as is the case of the Association of Users of Banks, Savings Banks and Insurance of Spain (ADICAE), which launched a collective action against 101 financial entities operating in Spain.
The opinion of the Advocate General is not binding on the Court of Justice of the EU (CJEU) although the vast majority of the sentences handed down by the European High Court follow the line previously established by these opinions.
This association wants these entities to stop using the floor clauses and to return the amounts paid in application of these clauses and, after making appeals in the national media, 820 consumers showed up in support of the collective action.
Having seen their claims rejected on two occasions, the banks filed an appeal before the Supreme Court, which had doubts about the adequacy of the collective procedure to carry out a control of the transparency of the floor clauses to assess whether they are abusive.
In this regard, the Attorney General has clarified that judicial control of transparency in collective procedures is appropriate and possible and that it should only be adapted to the specific characteristics of collective actions, such as their level of abstraction, and focus on contractual practice and standard pre-contractual agreement of the professional versus the average consumer.
“Excluding the examination of the transparency of contractual clauses in the framework of collective procedures would be contrary to the purpose of collective actions and would be incompatible and incoherent with Union legislation that seeks to strengthen judicial protection of the collective interests of consumers,” the text points out.
The conclusions also indicate that it is possible to carry out said judicial control when the procedure is directed against a considerable number of financial entities and affects numerous contracts, provided that the professionals belong to the same economic sector, the contractual clauses are similar and the right of each financial entity to effective judicial protection.
The Advocate General emphasizes that it is for the Supreme Court to determine whether there is a sufficient degree of similarity to allow the collective action to proceed and that, in this regard, it can take into account that the professionals are all banking entities and that the disputed clauses are clauses type floor included in mortgage contracts and whose effect is to exclude the variability of the interest rate below a certain level.
According to its conclusions, all these elements can constitute a strong indication that there is sufficient similarity and it considers that it is possible to use the standard of the average consumer to carry out the transparency control in the matter pending before the Supreme Court, since this objective standard assessment is independent of the characteristics and number of affected consumers.
