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Communication Updated: 13 Jul 2016

Eduardo Ortega: “We always believed that the criteria adopted by the Spanish Supreme Court complied with EU Law”

Today the relevant conclusions of the Advocate General of the ECJ on the retroactive nature of the declaration of invalidity of the floor clauses have been made public in the preliminary ruling set forth by the Provincial High Court of Alicante.


“We were convinced that the criteria established by the Spanish Supreme Court, adopted in a plenary meeting and voted unanimously, in its May 9, 2013 ruling, was compatible with EU Law. Also, this first ruling has been confirmed by the High Court on subsequent occasions. The Advocate General's report has confirmed our views.” This is the assessment made by Eduardo Ortega, Head of Legal Litigation Services at BBVA Group after learning about the opinion issued by Paolo Mengozzi, Advocate General of the European Court Justice, this morning in Luxembourg.

In Ortega’s opinion “the Advocate General’s conclusions ratify that article 6 of the Directive grants broad decision-making powers to Member-State authorities at the time of determining the temporal consequences of the unfairness and that these powers could not be overturned de facto.”  “We also defended that, under specific and exceptional circumstances, adequately explained, the Supreme Courts of a country could set certain limitations to the temporal effects of said declaration of unfairness.” “However” – he added - “we need to be extremely cautious and respectful, because the Advocate General’s opinion is just a report, a highly relevant and authoritative one, but nevertheless just a report. In any case, we need to wait for the ruling, which should be issued late this year.”

Le Grande Salle, European Court of Justice in Luxembourg

For Eduardo Ortega “in cases as significant as the one at issue, it is also necessary to respect the serene work of the Court, avoiding all sorts of parallel judgments, noise or pressure.” We must also keep ourselves from the widespread tendency to think that only those court rulings that are in line with our perceptions are fair, while, on the contrary, those that are not, are always driven by arbitrary or political motivations.”

The Advocate General suggests that the Court “should hold that the temporal limit on the effects of the invalidity of ‘floor’ clauses included in mortgage loan agreements in Spain is compatible with the directive.” This proposal responds to the preliminary ruling brought before the ECJ by the Provincial High Court of Alicante, regarding the temporal limitation of the effects of the declaration of invalidity of the floor clauses established by the Spanish Supreme Court.

In the document he read this morning in Luxembourg, Paolo Mengozzi noted that the European Directive “does not define the circumstances in which a domestic court may decide to limit the effects of decisions in which a term is found to be unfair. Therefore, it is for the internal legal order of the Member States to define those circumstances, subject to compliance with the EU law principles of equivalence and effectiveness.”

Three years ago, the Spanish Supreme Court ruled that the affected institutions had the obligation to repay the money unduly received in pursuance of said clauses, but only as from May 9, 2013. On that same date, BBVA removed floor clauses from all loans.

The Advocate General’s report published this omrning in Luxembourg is non-binding, but is usually taken into high consideration by the ECJ. The ECJ is expected to issue its final ruling on the matter later this year.