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Case Details

Case Details
National ID 667/2010
Estado miembro España
Common Name AUSBANC v. Caja Provincial de Ahorros de Jaén
Decision type Otros
Decision date 04/11/2010
Órgano jurisdiccional Tribunal Supremo
Asunto
Demandante
Demandado
Palabras clave

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

1. A clause to round up the interest of reference in the yearly revisions of the loans must be considered unfair because it goes against the good faith and it causes an unjustified damage and imbalance.
2. The Spanish law of transposition of the Directive 93/13 on unfair terms (Law 7/1998) did not implement the art. 4.2 of the Directive on the non-unfair nature of the essential elements of the contract. According to the ECJ judgment of 3rd. June 2010 a Member State may increase the level of protection for the consumers and, therefore (as such is the case), that rule does not apply in Spain.
The association of consumers for banking services known as AUSBANC brought a collective action of cessation against the bank “Caja Provincial de ahorros de Jaén” to avoid the use of a standard term included in variable rate mortgages, which was used to calculate the interest of reference in the yearly revisions of the interests of those loans. According to this clause, the interest had to be always rounded up in favour of the bank. AUSBANC demanded the nullity of this “unfair contract term” in the preexisting contracts; the elimination of it; the refund of the amounts that the bank had charged on the basis of this clause; and the publication of the judgment in the Official Bulletin of the Commercial Register and in a national newspaper. The Court of First Instance and the Appeal Court accepted partially the claim (with the exception of the refunding). “Caja Provincial de ahorros de Jaén” appealed to the Supreme Court against the former decisions. The Supreme Court did not accept the claim.
The Court understands that the Appeal Court of Jaén of 19 June 2006 correctly applied the arts. 8 para 2 of the Law 7/1998 on standard terms in contracts and 10 bis of the Law 26/1984 on protection of the consumers and users. According to this, the clause must be considered an unfair term, because it goes against the good faith and it causes an unjustified damage and imbalance.
Secondly, the judgment addresses the problem of whether the rules against unfair terms are or not applicable to the essential elements of the contract (art. 4.2 of the Directive 93/13/EC). In order to solve this issue, the Court follows the criteria of ECJ judgment of 3rd. June 2010 (C-484/08), which establishes that the Directive reserves the possibility that the Member States guarantee for the consumer a higher protection through more strict dispositions. Therefore, the clause must be considered unfair.
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