The Court of Justice of the European Union (Ninth Chamber, ruling on the preliminary question C-484-21) has finally clarified when the limitation period for claims for mortgage expenses expires, clearly amending the restrictive criteria in the interpretation of the principle of effectiveness (art. 6.1 art. 7.1 Directive 93/13) by some Spanish courts. The Court assesses different moments in which the consumer could have knowledge of the facts on which the claim action is based and thus specify the start of the limitation period; 1st. either when the consumer paid the costs when taking out the loan; 2nd. either when the Supreme Court declared a «standard clause» of equivalent scope to be abusive in general, or; 3rd. from the moment in which each Court hearing the claim brought by the consumer concerned declares, specifically, the costs clause of his mortgage loan to be null and void.

            And the latter is the valid criterion; thus the consumer can only have certain knowledge of the irregularity of the clause of his mortgage loan when it (and not another from other loans, other judgments and other consumers) is declared abusive and null and void by the corresponding Court. Therefore, it is only when a court has specific knowledge of the abusive scope of the clause in question in the loan deed signed by the consumer and declares it null and void that the limitation period for the restitution action, «the aim of which is none other than to re-establish the factual and legal situation in which the consumer would have found himself if the clause had not existed…».

It should also be specified:

1. 1. The banking institution, the professional lender, has the power to prove that the specific consumer, its client, was or could reasonably have been aware of the unfairness of the clause and therefore of the opportunity to claim before the court issued an individualised judgment declaring the clause null and void. The possibilities for the bank to defend itself are thus guaranteed, but one would have to ask what specific conduct or information the bank has provided about the possibility of claiming, especially when it has been condemned in multiple proceedings of other clients and consumers beforehand. The bank cannot demand from its client a diligence in the duty to inform itself that it intentionally omits in order to avoid the claim, letting time go by to see if the client forgets and the time limit expires, which is what is happening, because obviously only a percentage of them claim, not all of them.

            The European Court of Justice itself stresses this in its splendid ruling and imposes on the professional «an obligation of diligence and information for the consumer» and avoids «the situation of inferiority of the consumer which Directive 93/13 seeks to mitigate», as has been happening in recent years due to the ambiguity of our high courts in interpreting the prescription of the action for claiming an amount based on presumptions about when the consumer knows or not the existence of a right, and if he read this or that Supreme Court ruling on this or that date, and not by the principle of effectiveness, so that «the result is that the professional takes advantage of his passivity in the face of the illegality declared by the national supreme court. …», «… the banking institution has, in principle, a legal department, specialised in the matter which drafted the contract at issue in that case and which has the capacity to follow the evolution of the jurisprudence of that court and to draw from it the conclusions which are necessary for the contracts which that banking institution has concluded».

2. It is curious that the European Court of Justice makes a devastating criticism of the jurisprudential criterion «assumed» as the start of the calculation for the purposes of the limitation period on the dates of the judgments of the Supreme Court, as it literally states: «it turns out that an average, reasonably attentive and discerning consumer cannot be required not only to keep himself regularly informed, on his own initiative, of the decisions of the national Supreme Court concerning standard terms contained in contracts of the same nature as those he may have concluded with professionals, but also to determine, on the basis of a judgment of a national supreme court, whether a term such as the one incorporated in a specific contract is unfair». It is obvious but puzzling that the European Court of Justice should have to state this, and after all that has been said on the subject.

Ldo. Francisco Javier Alex Guzmán