Jurisprudencia

Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 4, 1. Injunctions Directive, Article 1, 1. Injunctions Directive, Article 2, 1. Injunctions Directive, Article 3 Injunctions Directive, Article 5, 1. Injunctions Directive, Annex I

1. The rules to protect the consumers are not effective if they do not have the real chance to exert their rights before the jurisdiction or they do not have easy access to the courts of justice.
2. Between the actions that defend the collective and the diffused interests of the consumers there are differences to do with requirements and to do with aims.
3. In order to be brought the action of cessation has to have as a necessary premise that the plaintiff fulfills one or more of the conditions of the art. 16 of the Law 7/1998 (as amended by the transposition of the Directive 98/26/EC). In its 3rd paragraph the consumer associations legally constituted and responsible for the protection of the consumers are considered as possible claimants.
4. A clause that establishes the rounding up of the interest rate of a loan always benefiting the bank is unfair and therefore void.

The consumer association for banking services “Ausbanc” brings a collective action against “Banca March” to protect the consumers’ interests in connection to an unfair clause that rounds up mortgaged loans. Despite of the opposition of the defendant, arguing that the aforementioned association has no right to sue since it does not represent all the consumers involved, the court accepts the lawsuit of the association and all its claims, the main one being the cessation and removal of the unfair clause.

The possibility that this consumer association brought an action of cessation will be determined by the fulfillment of the requirements established in the art. 16 of the Law on standard contract terms of 1998 (in its version after the transposition of the Directive on injunctions of 1998). According to this, they can start these actions “consumer associations legally constituted that had in their statutes the objective to protect the consumers”. The court sees the need that two requirements are fulfilled: the legal constitution and a specific content in its statutes. The judgment understands that the legal constitution has happened since they comply with the requirements within the provisions in the Law on associations. The registration in the Registry of the Ministry of Health and Consumption does not prevent the access to the jurisdiction, but to other advantages and subventions, so that the constitutional right of accessing justice is not damaged.

The court understands (unlike the Judgment of first instance of Barcelona of 17.10.2003, also displayed in this database) that it is an action to protect the diffused interests of consumers and users and the claimant points out that “this association is actively legitimized to defend within a hearing the rights and interests of its members, as a representative enough, in the case of damage of a round up clause”.

The administrative rules of the Balearic Islands (Law 1/1998, of 10th March), allows the consumers and users associations to have direct recourse to the law and does not require that the association belongs to any Council nor to any administratve Comittee to be able to protect the consumers. This rule denies one of the alegations of the defendant.

Also, the court makes a distinction between collective interests and diffused ones, referring to these latter ones as “the ones that really affect the consumers, since they are considered diffused those which come up from an accidental or generic situation as it could be to consume certain kind of products or to have signed a contract with a certain company or groups of companies, unlike the collective interests which are common to a group of people with a shared legal link among them”.

To conclude, the court mentions the prolific national legislation in connection with the legitimization of the consumers and users associations and also briefly the European context, and thus points out that the legitimization of the claimant becomes indisputable after the modifications of the Law on Civil Procedure, of the Law on standard contract terms (art.16), of the Law on consumer protection (art.10 ter) and in issues connected to consumer credit, all generated by the Law 39/2002, of transposition to the Spanish legal regulation of Directives from the European Union regarding the protection of the consumers and users’ interests.

It is understood that Ausbanc is sufficiently legitimized given the reasons presented above. Besides, it considers unfair the clause of reference (with wide cites in legal argumentation, not only the standard one for the protection of consumers but the banking legislation, as well as the Directive of 1993), following a similar argumentation to the judgment of first instance of Barcelona of 17th October 2003 (see in this database).

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