Constitutional Protection: Absence Of Judicial Control Of Unfair Clauses That Ignore The Primacy Of European Union Law

Author:Ms Ascensión Martín
Profession:Marti & Associats

The Judgment of the Plenary Session of the Constitutional Court (hereinafter TC) No. 31/2019, of February 28, dictates doctrine on the scope of the right of the respondent in enforcement proceedings to demand judicial control ex officio of unfair clauses in consumer contracts, based on an interpretation of the jurisprudence of the Court of Justice of the European Union (hereinafter CJEU).

The case is as follows: mortgage foreclosure proceedings that rejected the application for an invalidity proceeding filed by the plaintiff on the basis of constitutional protection in which he denounced the unfair nature of the early termination clause in the mortgage foreclosure deed.

It must be borne in mind that in mortgage foreclosure proceedings the Court Decision to award the property subject to the proceedings had already been issued. And it was precisely at that moment when the appellant requested the invalidity of the early termination clause contained in the mortgage loan contract and, secondarily, the suspension of the mortgage foreclosure proceedings. The appellant understood that this clause was null and void and that the consequent effects required not only its complete removal from the contract but also the invalidity of all the acts and effects of the same clause from its origin, which would amount, therefore, to no legal entitlement to undertake the mortgage foreclosure proceedings.

In his brief, the appellant referred to the jurisprudence of the CJEU, requesting that the proceedings be suspended until the preliminary ruling that the First Chamber of the Supreme Court (hereinafter SC) referred a question for in its Decision of February 8, 2017, was resolved, adding that the exercise of invalidity action is not subject to a time limit.

The Court of First Instance ruled that there were no grounds for invalidity because: (i) the cause of invalidity corresponds to the grounds for opposition to the enforcement proceedings, (ii) after the deadline, (iii) estoppel of the term, (iv) the principles of estoppel and res judicata are not incompatible with the principle of primacy of European Union law, (v) the jurisprudence of the CJEU does not have retroactive effect, nor does it require review of the Court Decision that was agreed to issue the enforcement (vi) there is no preliminary ruling, and (vii) the ex officio examination of the deed cannot replace omission of the opposition by the appellant to the proceedings in due time.

The appellant...

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