The Court of Justice of the European Union (CJEU), in its ruling of April 25, 2024, addressed the preliminary questions posed by the Spanish Supreme Court regarding the start of the limitation period for the action to refund mortgage expenses paid by consumers under clauses deemed abusive. The central issue focused on determining when the limitation period for the restitution action should start, whether it should begin from the time the payment is made, from the declaration of the nullity of the abusive clause by a final judgment, or from another relevant jurisprudential moment.
The CJEU’s ruling establishes that the limitation period for the restitution action does not begin until a final judgment declares the nullity of the abusive clause, arguing that this aligns with the principles of effectiveness and legal certainty provided in Directive 93/13/EEC. This implies that the consumer, generally in a position of informational and negotiation inferiority, must have clear and firm knowledge of their rights to act.
Conclusions:
- Start of the Limitation Period: The period to claim the refund of mortgage expenses begins from the moment a final judgment declares the nullity of the abusive clause. This provides the consumer with a clear starting point to exercise their right to reclaim what was improperly paid.
- Presumption and Burden of Proof: The presumption that the consumer is unaware of the abusive nature of the clause until its nullity is declared is iuris tantum. This means that the professional (bank) may attempt to prove that the consumer had or should have had knowledge of the clause’s abusiveness before the judgment, although this represents a considerable burden of proof for the professional.
- Impact of Previous Jurisprudence: The Court of Justice notes that previous decisions, whether from the Supreme Court or the CJEU itself, do not automatically establish the consumer’s awareness of the abusiveness of the clauses, reinforcing the consumer’s position in cases of non-transparent and complex clauses.
- Legal Certainty vs. Consumer Protection: The CJEU’s decision seeks to balance legal certainty with effective protection of consumers, ensuring that limitation periods do not unjustly prevent the claim of rights recognized by European Union legislation.
This CJEU ruling provides a clearer and more favorable framework for consumers, allowing them to recover amounts paid under abusive clauses without fear of premature time limitations, and highlights the need for professionals to act with greater transparency and fairness in the drafting and application of contractual clauses.