The Court of Justice of the European Union has considered that limiting the retroactivity of the refund of the overcharged to May 2013, date of the first judgment of the Supreme Court on this matter, is contrary to Community law, which in practice is equivalent to recognizing the total retroactivity since the signing of the loan.
The European Commission had always defended the restitution of everything unduly paid since the signing of the contract and argued that the decision of the Supreme Court is contrary to Community law. However, the Spanish State Attorney’s opinion last July was contrary to this point of view, and closer to the position of the Supreme Court, which protected the bank because of the macroeconomic repercussions that this could have, and for the sake of stability of the financial system.
Now the final sentence has established clearly what most lawyers maintained: the abusive nature of a clause must have the consequence of restoring the situation in which the consumer would be found in the absence of such a clause. Consequently, the declaration that the ground clauses are abusive must allow to restore the advantages improperly obtained by the trader in detriment of the consumer. Therefore, banks will have to refund every amount that is not prescribed.
Lorenzo Vílchez Vílchez
Sant Miquel, 46, esc. dcha., 2º, 10-A. 07002