CONCLUSIONS AND FINAL THOUGHTS

After thirty years of implementation of Directive 93/13/EEC on unfair terms in consumer contracts, it is possible to affirm that this is a joint and progressive task of the legislator and the judges, which - although well advanced - does not seem to be finished. The following conclusions can be drawn from the analysis of this period:

First. Directive 93/13/EEC on unfair terms in consumer contracts could only be effective in Spain if its transposition was accompanied by procedural reforms, beyond the incorporation into Spanish law of its material content. For this reason, Directive 93/13 is at the origin of important procedural changes in Spain, driven by the case law of the CJEU when it responds to the preliminary ruling question posed by our judges. As this case law also implies an exception to classic principles of procedural law, the result can be explained by alluding to the generation of a specific branch - "European consumer procedural law" - which is detached from general procedural law (as consumer law also abandons the "general part or theory" in matters of contracts). This branching is logical since the starting point of one and the other branch of procedural law is different, depending on whether or not there is equality between the parties.

Second. The case law of the CJEU, in the dialogue held with national judges through the preliminary ruling on the occasion of Directive 93/13/EEC, has recalled - like no other - the role of national judges in the European jurisdictional pyramid. In fact, a milestone in the

87

process of shaping the Spanish judicial system in the European context has been the preliminary questions referred by the Spanish Supreme Court to the CJEU on the occasion of the aforementioned Directive[53].

At the same time, the study of this period of implementation of Directive 93/13 prompts a final reflection on the role of the case law of the CJEU in the national system of sources. It is interesting to note that the case law of the CJEU seems to act as a genuine source of EU law on unfair terms: although its judgments are not legal but judicial rules and, therefore, applicable to the specific case, it happens that - as an authoritative interpretation of the Directive - they must be applied to other cases in which identical circumstances are present, which in the area of contractual terms introduced in mass contracts can be commonplace. This has led to the acceptance of new procedural engineering concepts, such as the witness procedure, which are pending approval.

[1] This work is part of the project "Hacia un Derecho Procesal de Consumo: un paso en la modernización de la jurisdicción civil en el contexto europeo" (PID2020-117624GB-100), financed by the Ministry of Science and Innovation. The author thanks Francisco Verdún the general review of the chapter.

[2] As explained by M. JIMENO BULNES, in "El diálogo entre tribunales europeo y nacional: su incidencia en derecho procesal español", Adaptación del Derecho procesal español a la normativa europea y a su interpretación por los Tribunales, JIMÉNEZ CONDE (dir.), Tirant lo Blanch, 2018 (pp. 101-135), the best examples of the dialogue between European and national courts are that of unfair terms in civil matters and that of European arrest warrants in criminal proceedings, and -among both- the one that best shows its impact on Spanish procedural law is the former (p. 104).

[3] Currently, Articles 80 to 91 TRLGDCU.

[4] F. ADAN DOMÉNECH, "Deconstructing the Spanish procedural code", Justicia, 2018, no. 2, pp. 223-268.

The author describes the effect of the CJEU's case law on the Spanish procedural code as a "legal tsunami". In his opinion, applying this case law and the European Directives entails a breach of "the basic principles and Spanish procedural dogmas", which is why he considers that "the main challenge" of the Spanish legislator consists of

"finding a solution to these inconsistencies and incompatibilities" in order to allow "harmonious coexistence with the Community legal system" (p. 223).

[5] M. LÓPEZ GIL, in "El principio tantum apellatum quantum devolutum en la justicia de consumo: una nueva cuestión prejudicial ante el TJUE", Actualidad Civil, La Ley-Wolters Kluwer, online, nº 5, 2022.

[6] A.-J. PÉREZ-CRUZ MARTÍN, "La cosa juzgada ha muerto (y los principios procesales vilipendiados)", in Actualidad civil, La Ley-Wolters Kluwer, online, nº 7, 2022.

[7] S. GONZÁLEZ GARCÍA, "El control de oficio, un ataque frontal al principio dispositivo del proceso civil:

Hacia un proceso especial de consumidores?", Diario La Ley, 15.12.2017, no. 9100.

[8] J. DAMIÁN MORENO, "Ante la jurisprudencia del TJUE, por qué el Derecho procesal tiene que pagar los platos rotos?, V Encuentro sobre Jurisprudencia Europea, Centro Español del European Law Institute (Spanish Hub), online, 15 May 2020. In a similar vein, M. LÓPEZ GIL ("El principio tantum apellatum quantum devolutum en la justicia de consumo: una nueva cuestión prejudicial ante el TJUE", Actualidad Civil, May 2022) seeks a conciliatory interpretation of the case law of the CJEU with national procedural law, the rejection of which would make it necessary, in his opinion, to address "the creation of a special process in consumer matters governed by other principles" (Summary).

88

[9] Conversations with the Dean of the Faculty of Law of the Autonomous University of Madrid, Professor Juan Damián Moreno, Professor of Procedural Law, in December 2020. Currently, the author gives a very valuable explanation of how the system is working: J. DAMIÁN MORENO, "El valor de las ficciones como garantía del principio de efectividad: consideraciones en torno a la situación creada por la sentencia del TJUE de 17 de mayo de 2022", Diario La Ley (21.11.2022).

[10] Both, in the wake of the Aziz case, by Law 1/2013, of 14 May, on Measures to strengthen the protection of mortgage debtors, debt restructuring and social renting.

[11] By the same Law 1/2013, of 14 May, on Measures to reinforce the protection of mortgage debtors, debt restructuring and social renting.

[12] Reform also driven by the CJEU, in the Banco Español de Crédito case (CJEU 14 June 2012, Case C-618/10).

[13] Judgment of the CJEU of 14 March 2013 (Case C-415/11).

[14] Law 1/2013, of 14 May, on measures to reinforce the protection of mortgage debtors, debt restructuring and social renting.

[15] The defendant could not paralyse the execution by opposing the existence of unfair terms in the contract because article 695 LEC did not contemplate, among the causes of opposition, the aforementioned.

[16] Although it should be remembered that, even before the Aziz case, the CJEU had begun to declare that the judge could not only assess the existence of unfair terms of his own motion, but that he was even obliged to do so, in accordance with the provisions of Article 6.1 of Directive 93/13/EEC. The reason for this is that the consumer is in a vulnerable position vis-à-vis the trader in terms of both bargaining power and information, so that the contractual balance must be restored by means of special consumer protection measures. According to the doctrine of the CJEU, this rebalancing of the equality of the contracting parties requires the intervention of third parties outside the contract: in particular, the judge hearing the case; thus, in the CJEU judgments of 27 June 2000 (Océano Grupo Editorial and Salvat Editores case, EU:C:2000:346), 16 October 2006 (Mostaza Claro case, EU:C:2006:675) and 6 October 2009 (Asturcom Telecomunicaciones case, EU:C:2009:615), among others. See:

M.J. GARCÍA-VALDECASASAS DORREGO, Diálogo entre los Tribunales españoles y el TJUEU sobre la tutela judicial del consumidor al amparo de la Directiva 93/13/CEE, Colegio de Registradores, 2018, pp. 33-48 (the book has been published in English as well).

[17] This can be related to Article 681.1 LEC.

[18] Mortgage Law.

[19] Even more so if they are complemented by the case law of the CJEU.

[20] Á.F. CARRASCO PERERA, "La Ley 1/2013, de 14 de mayo, de reforma hipotecaria, y la articulación procesal del control sobre cláusulas abusivas en la ejecución hipotecaria", Revista CESCO de Derecho de consumo, n. 6, 2013, pp. 58-65.

[21] I refer to questions such as the role of the case law of the CJEU in the system of sources; the role of the CJEU itself as "tutor" of the legislator in relation to the transposition of the Directive, and of course as "tutor" of the Judges and Magistrates when it comes to interpreting it. In short, it raises the question of whether we are dealing with a Common Law system, with the consequent normative function of precedent when it comes to the CJEU.

[22] J. L. REQUEJO PAGÉS ("Un Tribunal constituyente", El Tribunal de Justicia de la Unión Europea. Una mirada española, Colegio de Registradores, 2020, pp. 203-213) explains that "the problems caused by the lack of a Constitution common to the Union and the Member States are solved to some extent by the unifying function attributed to the Court of Justice" (p. 207). As a result, the European Commission has taken care to systematise the vast amount of doctrinal and jurisprudential material that Directive 93/13 has given rise to, so that it is known and can be applied [Communication from the Commission, Guidelines on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts, 2019/C 323/04, OJEU 27.9.2019], but logically this document is a Guide (p. 6) without binding force: each CJEU judgment does have binding force for the specific case, giving rise to a mechanism worthy of study from the point of view of the sources of law in the EU (and its relationship with the Anglo-Saxon system of judicial precedent).

89

[23] The principle of the primacy of Union law - mentioned above - appears in the Declaration (no. 17) annexed to the Treaty of Lisbon, but not as an original right but rather as a recognition of the imperative nature of the CJEU's interpretation of EU law. The text reads as follows: "The Conference recalls that, according to the settled case-law of the CJEU, the Treaties and the law adopted by the Union (...) take precedence over the law of the Member States, under the conditions laid down by that case-law / It follows from the case-law of the Court of Justice that the primacy of Community law is a fundamental principle of Community law". The principle of the primacy of Union law is supplemented by other principles, also in case-law, which reinforce it (principles of unity of interpretation, consistency, full effectiveness and autonomy of EU law).

[24] CJEU 5 February 1963, Case 26/62, Van Gend en Loos v. Dutch Tax Administration. The judgment enshrines the principle of direct effect of EU law, which not only creates duties for States but also rights for EU citizens, who may invoke them before national courts or before the CJEU when there is no remedy under national law.

This direct effect covers two aspects, vertical and horizontal, of the application of EU law.

[25] Both principles have their origin in the Rewe case (CJEU judgment 20.02.1979; Case 120/78).

[26] J. DAMIÁN MORENO, "El valor de las ficciones como garantía del principio de efectividad:

consideraciones en torno a la situación creada por la sentencia del TJUE de 17 de mayo de 2022", Diario La Ley (21.11.2022).

[27] The Supreme Court ruled that floor clauses are null and void when they are not accompanied by a ceiling clause or when there is such a difference between the two that it results in a contractual imbalance detrimental to the consumer.

[28] In its ruling 241/2013, of 9 May, the Supreme Court limited the effects of the nullity of floor clauses both for payments made prior to the ruling and for cases in which a decision with res judicata effect had been handed down.

[29] C-154/15; ECLI:EU:C:2016:980. https://curia.europa.eu/juris/liste.jsf?num=C-154/15

[30] The judgment states (n. 68): '(...) the Court of Justice has already recognised that consumer protection is not absolute. It has held, in particular, that EU law does not require a national court to disapply domestic procedural rules conferring res judicata on a decision, even if that would make it possible to remedy an infringement of a provision, of whatever nature, contained in Directive 93/13 (see, to that effect, Case C-40/08 Asturcom Telecomunicaciones, ‑EU:C:2009:615, paragraph 37). It follows that the Supreme Court could legitimately hold, in the judgment of 9 May 2013, that the latter did not affect situations definitively decided by earlier judicial decisions having the force of res judicata".

[31] J. Mª BECH SERRAT; "Cláusulas suelo y autonomía procesal en la Unión Europea: ¿Por qué no hacer una excepción de la cosa juzgada?", Revista para el análisis del Derecho. InDret, 2018, p. 4.

[32] CJEU 29 October 2015, BBVA, C-8/14.

[33] The Spanish legislator was obliged to comply with this ruling, introducing the third transitional provision in Law 5/2019 of 15 March, regulating real estate credit contracts, but the delay with which it rectified the situation caused, in our opinion, serious harm to all mortgagors who lost possession of their home from the date of the BBVA ruling (October 2015) until the entry into force of the third transitional provision (15 June 2019).

[34] On the website Poder Judicial.España, it is published on 23.12.2021, that "The CGPJ concludes the plan of specialisation in abusive clauses in 20 courts thanks to the notable decrease in pending cases" (while in another 24 it is extended for half a year to a year).

[35] The bill was approved by the Council of Ministers on 12.04.2022, and together with the Digital Efficiency Act and the Organisational Efficiency Bill, it constitutes the legislative basis of the Justice 2030 Plan.

[36] E. CASTRILLO DE LARRETA-AZELAÍN, "El nuevo procedimiento testigo", Lex. El portal jurídico hispano-alemán, 30.04.2021 https://lex.ahk.es/actualidad-juridica/el-nuevo-procedimiento-testigo

[37] J. Mª BECH SERRAT, "Cláusulas suelo y autonomía procesal en la Unión Europea: ¿Por qué no hacer una excepción de la cosa juzgada?", Revista para el análisis del Derecho. InDret, 2018. The author cites several cases in which the case law of the CJEU admits this result; among them: (1) Asturcom Telecomunicaciones, although he refers to an award; and, (2) Banco Primus (to which I will refer below).

90

[38] The judgment expressly refers to the precedent of the Gutiérrez Naranjo case, among others, in these terms:

"47. Furthermore, the Court of Justice has already accepted that consumer protection is not absolute", and recalls that the courts are not obliged to disapply the principle of res judicata "even if this would make it possible to remedy the infringement of a provision" of Directive 93/13/EEC. While declaring the compatibility of Article 207 of the Spanish LEC, the CJEU specifies that "in the case of the existence of one or more contractual terms whose possible unfairness has not yet been examined in a previous judicial review of the contract at issue, which has been concluded by the adoption of a decision having the force of res judicata, Directive 93/13 must be interpreted as meaning that the national court, before which the consumer has, in accordance with the requirements of the rule, lodged an objection, is required to assess, at the request of the parties or of its own motion, where it has the necessary factual and legal evidence to do so, whether those terms are unfair' (Nos 54 and 76). 54 y 76).

[39] STC 31/2019, of 28 February, of the Plenary of the TC (ECLI:ES:TC:2019:31).

[40] Mª J, GARCÍA-VALDECASASAS DORREGO ("La sentencia de 28 de febrero de 2019 del Tribunal Constitucional: preclusión procesal, cosa juzgada y derecho de propiedad en la declaración de abusividad de una cláusula contractual", Derecho privado y Constitución, 37, 2020, pp. 343-380) explains that the antecedents of this judgment of the Constitutional Court are, on the one hand, the CJEU judgment Océano Grupo Editorial and Salvat Editores (various joined cases, ECLI:EU:C:2000:346), in which the CJEU declared for the first time that the national court is obliged to declare ex officio the nullity of unfair terms, and the CJEU Pannon judgment (C-243/08, 2009), which states that this obligation of the court arises from the moment it has the factual and legal elements necessary to do so; On the other hand, the cases BBVA (C-8/14, 2015) and Banco Primus (C-421/14, 2017), also decided by the CJEU, on the same issue and with an identical solution (declaring the one-month time limit for the extraordinary motion for opposition, provided for in the Fourth Transitional Provision, paragraph 2, of Law 1/2013, of 14 May, on measures to strengthen the protection of mortgage debtors, debt restructuring and social renting, to be contrary to the principle of effectiveness), but which present a notable difference, the author points out: In Banco Primus the home had already been awarded to the bank but had not yet been placed in the possession of the successful bidder (an act that can be voluntary, or else developed judicially after the launch). In the author's opinion (p. 347), the Constitutional Court could also have taken into account the TJUE Banco Santander judgment (C-598/15, 2017), because of its relation to the subject.

[41] In the work cited (2020), p. 372.

[42] The judge of first instance had refused to classify the abusivity of the clause because the adjudication decree had already been issued after the auction; the Provincial Court subsequently refused for a different reason:

although the criterion set out in the STC 28.02.2019 (STC 31/2019), because delivery had not taken place, it was considered that it was not appropriate to enter into the classification of the abusiveness of the clause because the conduct of the foreclosed party had been an obstacle to delivery (giving rise to two suspensions of the launch as it had voluntarily refused to make the delivery) and because it had lost the opportunity to request the declaration of nullity of the clause at the time. The TC considers that the judicial body should have acted motu proprio to declare the clause null and void at the time, but did not do so.

[43] In which the necessary judicial control of abusive clauses is reiterated before the moment of conclusion of the procedure (article 24 EC), and that this moment occurs when the third party acquirer takes possession of the property (as in STC 30/2019, cited above).

[44] In the work cited (2020), p. 362.

[45] In the work cited (2020), pp. 365-370.

[46] ECLI:EU:C:2022:397.

[47] I take the liberty of transcribing in English some of his statements in this note: "It is forbidden for judges to shape or adapt a process as they wish in order to guarantee the principle of effectiveness; and however much will they put into applying this principle, they are often constrained and have no room for manoeuvre to do so, so that, to save their responsibility as judges, they have no choice but to refer the matter to the Court of Justice". This leads the author to state: "The principle of effectiveness is the right to effective judicial protection squared". And, as if to reconcile the proceduralist doctrine (or, at least, himself) with the case law of the CJEU, he adds this reflection: "Ihering, defender of the advantages of the existence of procedural rules, was not unaware that the process is tributary to the material law that regulates the substance of the matter and that, however much it resists, in the end it ends up giving in and adapting to the new reality imposed on it by the substantive law it serves" (J.

91

DAMIÁN MORENO, “El valor de las ficciones como garantía del principio de efectividad: consideraciones en torno a la situación creada por la sentencia del TJUE de 17 de mayo de 2022”, Diario La Ley, 21.11.2022).

[48] European Parliament resolution of 4 July 2017 with recommendations to the Commission on common minimum standards on civil procedure in the European Union [2015/2084(INL)].

[49] Communication from the Commission, Guidelines on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts, 2019/C 323/04, OJEU 27.9.2019.

[50] It is significant in this regard that, in Spain, the General Council of the Judiciary, through its Standing Committee, programmed in 2017 a plan for specialisation in unfair terms for 44 judicial bodies (concluded in 2022 in 20 of them and extended in the other 24). The positive result is said to be the streamlining of procedures and a certain homogenisation of the criteria applied [Source: https://vlex.es/vid/cgpj-concluye-plan-especializacion-879588877?from_fbt=1&forw=go&fbt=preview Date of consultation: 07.01.2022].

[51] This is what the CJEU judgment 14.03.2013, Aziz case (point 50): "in the absence of harmonisation of national enforcement mechanisms, the detailed rules for the application of the grounds of opposition allowed in the context of mortgage enforcement proceedings and of the powers conferred on the court hearing the declaratory judgment, which is competent to examine the lawfulness of the contractual terms on the basis of which the enforcement order was established, form part of the domestic legal order of each Member State by virtue of the principle of the procedural autonomy of the Member States, provided, however, that they are no less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness) (see, to that effect, Case C-168/05 Mostaza Claro ‑[2006] ‑ECR I-10421, paragraph 24, and Case C-40/08 Asturcom Telecomunicaciones ‑[‑2009] ‑ECR I9579‑, paragraph 38).

[52] A. GONZÁLEZ ALONSO/S. OUBIÑA BARBOLLA, "Prólogo de las directoras", El vértice de los sistemas judiciales, UAM/BOE, Madrid, 2018, pp. 65-67, p. 66. Subsequent are, for example, the preliminary questions referred in June 2021 by the Supreme Court to the CJEU on the limitation period for the action for restitution of mortgage expenses, in relation to Directive 93/13, on unfair terms (Articles 6 and 7.1); or in September 2021 on the compatibility with the aforementioned Directive of its doctrine on transparency and unfairness of arrangement fees in mortgage credit transactions with consumers.

92

TRANSPOSITION OF DIRECTIVE (EU) 2019/771 ON CERTAIN ASPECTS