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Can clauses already declared invalid since May 2013 be considered null and void?

The Supreme Court has begun to rule on the thorny issue of res judicata, which has caught up with partial returns to many pioneering plaintiffs, and whose situation is legally difficult because it can not join the "legal umbrella" of total retroactivity offered by the Court's judgment Of European Justice.

It must be taken into account that the retroactivity of a judicial decision is something exceptional in our legal system, and applicable in few cases and that in this case is motivated by the importance that is being given to this issue in our country, being more Of about 2 million people affected.

In this case, the Supreme Court continues to interpret and apply the doctrine of the European Court of Justice and in a ruling of May 25, 2017 establishes as null and void the ground clauses contained in a mortgage contract signed with the current Abanca (former Novacaixagalicia) That the entity intended to be considered "res judicata" since the Supreme considered that their clauses were null in May 2013.

Abanca must refund all amounts overcharged and add legal interest from the date of collection as well as redo the loan repayment calculations.

The key ? If you have claimed in class action, you now claim as private

As has been speculated by many legal sources the difference has been that it has been considered that different causes are dealt with, since on the first occasion they canceled since May 2013 the clauses associated with a class action lawsuit, and this time Claim comes from individuals.

In this way the Supreme is positioning itself as it did in a ruling issued against BBVA in February 2017 and leaves the door open to the plaintiffs in collective cases brought by the main specialized firms in these matters, can be reviewed by the clients in An individual cause.

Therefore, we can consider that the Supreme Court is opening the hand to review in some cases the judgments on the ground clause, particularly when those affected have joined a class action lawsuit and give the possibility that they claim, even if a reductionist interpretation of EU jurisprudence could lead one to deduce that those who had a final judgment before the STS of May 9, 2013 could only initiate a procedure of patrimonial responsibility with the State unlike those that have a final judgment after May 9 , But still before the judgment of the European Court, which will have the possibility to urge that the decisions be completed or reconsidered.It seems that the Supreme Court will have to correct this confusion by following the trend it has shown up to now, or it would be advisable to ask the European High Court to give a preliminary ruling on this interpretation.

Rosón Legal, Specialists in banking and stock exchange law. More information in

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