Portal Europeo de e-Justicia - Case Law
Cerrar

YA ESTÁ DISPONIBLE LA VERSIÓN BETA DEL PORTAL

Visite la versión BETA del Portal Europeo de e-Justicia y díganos qué le parece.

 
 

Recorrido de navegación


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID link
Estado miembro España
Common Name link
Decision type Otros
Decision date 11/05/2005
Órgano jurisdiccional Audiencia Provincial
Asunto
Demandante
Demandado
Palabras clave

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

1. They are void for being unfair various clauses included in the contracts for banking services, as to prevent the consumer to know what commissions he will be charged, to make him pay all the legal costs in the event of an action against the bank, make him responsible for the forging of cheques that someone else may cash, the termination by the bank of any mortgage loan for any reason. It is also void the exoneration of responsibility of the bank due to the malfunctioning of automatic cashier or to the electronic transactions in electronic banking.
2. The success of the action of cessation brought up by a consumer association makes possible that the declaration of several unfair clauses as void applies to other banks that were not involved in the process, and therefore they will not be able to use those clauses in their contracts.
The “Consumers and Users Organisation” (OCU) brought up a collective action of cessation against 17 clauses included in the contracts signed by four of the main banks in Spain regarding various banking services. The judgment of the court of first instance number 44 in Madrid of 24th September 2003 established the total nullity of 10 of those clauses. Both the banks and the consumers association appealed the judgment and the Appeal Court stated that 8 of the clauses were clearly unfair. The consumers association has expressed their aim to contest the judgment before the Supreme Court so that more clauses out of the 17 contested can be declared unfair.
This important judgment accepts the action of cessation brought up by a consumers association against the terms of the bank contracts of four of the major Spanish banks. The court establishes, mainly arguing on the basis of the rules against unfair terms (Law 26/1984 and its additional first Disposition, where the unfair terms are listed; the Directive 93/13/EC is also quoted several times), that eight clauses have to be declared void, mainly for producing an unjustified imbalance against the consumer. Besides, the court orders to apply the effects of this judgment to all the clients of the rest of the banks and financing entities of the country, although they are not the ones the OCU brought an action against in this case.

More precisely, according to the judgment, no bank nor financing entity will include in their contract clauses in order to:

1) Prevent the consumer from knowing what commissions he is going to be charged.

2) Force the consumer to go to courts other than the ones that are closer to his home address. The judgment quotes against jurisdiction clauses the following judgments of the Supreme Court: 14th April and 29th November 2000, 27th December 2001, 14th October and 22nd November 2002.

3) Force the consumer to take on all the costs involved in a judicial process, that is, not only the bills of his own solicitor, but also the ones of the bank, whatever is the outcome.

4) Transfer to the consumer the responsibility in the event that someone forges a cheque and cashes it, whatever the circumstances.

5) Avoid the responsibility due to the malfunction of an automatic cashier if it does not deliver the money asked for, although the receipt indicates that the transaction was made.

6) Reserve for the bank the decision to terminate a mortgage loan contract for any reason, or when the registration of the public deed for whatever reason is rejected.

7) Avoid the duty of the bank to communicate to the consumer the cession of a loan to a third party, because, according to the court, although this practice makes the credit market dynamic and facilitates securitisation, it cannot be done to the detriment of the protection of the consumers.

8) Avoid responsibility for damages caused by failures in the electronic processing of any transaction (electronic banking).


On the other hand, the judgment accepts the validity of other common clauses in these contracts, as the pre-constitution by the bank of documents as binding evidence, the advance termination of a loan due to the breach of any provision by the borrower or for the bad economic situation of the latter or the prohibition to rent or sell the property subject to the loan.
Full Text: Full Text

No results available

No results available