The Court of Justice of the European Union (CJEU), in its judgment of 25 April 2024, has addressed the questions referred for a preliminary ruling by the Spanish Supreme Court in relation to the start of the limitation period for the action for restitution of mortgage expenses paid by consumers under clauses considered abusive. The central question focused on determining when the limitation period for the restitution action should begin to run, i.e. whether it should start from the time the payment is made, from the time the unfair term is declared null and void by a final judgment, or from some other jurisprudentially relevant point in time.
The CJEU ruling establishes that the limitation period for the restitutionary action does not begin until a final judgment declares the unfair term null and void, arguing that this is in line with the principles of effectiveness and legal certainty provided for in Directive 93/13/EEC. This implies that the consumer, generally in a position of inferior information and bargaining position, must have clear and firm knowledge of his rights in order to be able to act.
Conclusions:
Commencement of the Limitation Period: The time limit for claiming restitution of mortgage expenses starts from the moment a final judgment declaring the nullity of the unfair term is obtained. This provides the consumer with a clear starting point to exercise his or her right to claim what has been unduly paid.
Presumption and Burden of Proof: The presumption that the consumer is not aware of the unfairness of the term until the declaration of nullity is iuris tantum. This means that the professional (bank) can try to prove that the consumer was or should have been aware of the unfairness of the clause before the judgment, although this implies a considerable burden of proof for the professional.
Impact of previous case law: The Court of Justice points out that previous decisions, whether by the Supreme Court or the CJEU itself, do not automatically establish the consumer’s knowledge of the unfairness of the clauses, which strengthens the consumer’s position in cases of non-transparent and complex clauses.
Legal certainty vs. consumer protection: The CJEU decision seeks to balance legal certainty with effective consumer protection by ensuring that limitation periods do not unfairly prevent consumers from claiming rights under EU law.
This CJEU ruling provides a clearer and more favourable framework for consumers, allowing them to recover amounts paid under unfair terms 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 terms.