Brussels, 22/07/2014 (Agence Europe) - In a conflict between the debtor and creditor over a mortgage loan in Spain, the former is in a position of inferiority to the latter as regards the protection of his or her rights, as there are fewer channels of recourse available, which runs counter to Community law, the Court of Justice of the EU has found, in a verdict (case C-169/14) which was returned on Thursday 17 July.
When an individual in Spain becomes unable to pay his or her mortgage, the creditor can repossess the property in question and arrange for it to be auctioned off. However, the debtor may challenge the decision ordering the repossession if he or she is able to argue that the contractual clause underlying the execution is abusive in nature. If this request is accepted, the creditor can appeal. However, no appeal is possible the other way round: if the request is turned down, the debtor has no right of appeal.
Is this situation compatible with the directive on abusive clauses (93/13/EEC) and the right to recourse which is laid down in the Charter of Fundamental Rights of the EU (Article 47)? In its verdict, the Court finds that the procedure in place in Spain puts the consumer in a situation of inferiority compared to the professional as regards the legal protection of his or her rights derived from the directive. This also goes against the principle of equality of arms enshrined in the Charter. (JK)