Retroactivity, res judicata, analysis of the consumer condition and fulfilment of the transparency scrutiny in cases of floor provisions according to the judgments of the Court of Justice of the European Union rendered on December 21st 2016, and the judgments of the Spanish Supreme Court rendered on January 18th 2017, January 30th 2017, February 24th 2017, March 9th 2017 and April 4th 2017

Abstract

After the nullity of the abusive floor clauses was declared by the Spanish Supreme Court in the judgment of May 9th 2013, five matters have kept controversial: the retroactivity effect of the nullity, the foreclosure to bring actions as a result of the res judiciata procedural principle, the possibility to review final judgments beyond appeal as a consequence of the recent change in the caselaw, the consumer condition in order to apply the transparency test and the possibility to satisfy the transparency scrutiny under some circumstances.   All these topics are treated in the judgments that are studied in this article declaring definitively the retroactivity and the non-existent of a statue limitation for this nullity caused by the lack of transparency, as well as the rejection to apply the res judicata principle to these cases due to prior judgments rendered in relation to class actions (Judgments of the Court of Justice of European Union of December 21st 2016 and of the Spanish Supreme Court of February 24th 2017). Notwithstanding the above, the said judgments also establish that final judgments beyond appeal which did not grant the retroactivity cannot be reviewed as consequence of this caselaw change (Spanish Supreme Court resolution of April 4th 2017).  Additionally, they also clarify and declare the possibility that floor clauses may not necessarily lack of transparency, and consequently, that these provisions may be valid when they are not diluted among the text of the contract, there is an individual bargain in relation to the clauses of the loan and the public notary expressly informs on this matter (Spanish Supreme Court Judgment of March 9th 2017).  Finally the aforementioned judgments also set forth that the transparency scrutiny is not applicable to cases in which the loan has not been entered into by a consumer, being considered as one of these cases when the money is borrowed for the acquisition of real states that are used for an entrepreneurial activity or for refinancing the said activity (Judgments of the Spanish Supreme Court of 18th and 30th January 2017).